Terms & Conditions

CHINA ENTERPRISE COMMUNICATIONS LIMITED (“CEC”)

TERMS AND CONDITIONS OF CONFERENCING SERVICES

1. TERMS AND CONDITIONS

1.1 Communication Services (including but not limited to Audio and Web Conferencing Services) provided by CEC are subject to the terms and conditions set out below.

1.2 This Agreement commences on the date of acceptance of this Agreement by the Customer and shall continue for the term as set out in theCustomer Services Agreement[this is order form which content is yet to be defined], unless earlier terminated by either Party in accordance with clause 12.

1.3 Capitalised terms in these Terms and Conditions have the meanings given to them in Clause 2.

2. DEFINITIONS

Unless stated otherwise or the context otherwise requires, the following expressions in the Agreement shall have the following meanings:

“Affiliate” means, in relation to an entity, any other entity which directly or indirectly controls, is controlled by, or is under common control with, such entity.

“Agreement” means these terms and conditions and the Customer Services Agreement and any other document referred to in, or annexed to these terms and conditions.

“Applicable Law” means any law, rule or regulation of the People’s Republic of China and relevant industry codes applicable from time to time.

“CEC” means China Enterprise Communications Limited.

“Charges” means the charges for the Services specified in the Customer Services Agreement and/or in the annexures to the Customer Services Agreement

“Confidential Information” means the confidential information of a Party relating to this Agreement or the Services including: (a) confidential information about the technology, design or use of the System (including passwords and access codes);
(b) confidential information relating to the Customer Data;
(c) information relating to personnel, policies or business strategies of CEC; and
(d) information relating to the terms on which the Services are provided to the Customer in this Agreement.

“Customer” means customer specified in the Customer Services Agreement to whom Services are to be provided by CEC.

“Customer Data” means any data, provided, owned or used by the Customer relating to the Services which may include data generated, compiled, arranged or developed as part of the Services.

“Customer Equipment” means equipment, systems, and facilities provided by the Customer that are installed or reside at the Customer’s premises and used to interface with the Services.

“Customer Services Agreement” means that part of the Agreement where CEC offers to supply and Customer accepts supply of the Services on the terms and conditions of the Agreement;

“Force Majeure” means any cause beyond a Party’s reasonable control affecting the performance of its obligations hereunder including but not limited to fire, flood, explosion, accident, war, strike, embargo, governmental requirement, civil or military authority, acts of God, and industrial disputes,

“Government Agency” means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes the Ministry of Industry and Information Technology of the People’s Republic of China (MIIT).

“Intellectual Property” means any intellectual, industrial or commercial property, or right of a proprietary nature, including: (a) any patent, trademark, service mark or design;
(b) any copyright or work of authorship;
(c) any business, trade or commercial name or designation, brand name, Internet website or domain name, logo, symbol, source indication or original appellation;
(d) any Confidential Information;
(e) any other industrial or commercial right derived from intellectual knowledge or activity of any industrial, scientific, literary or artistic nature or description, whether relating to any manufactured or natural product or otherwise;
(f) any legal action relating to any previous item; and
(g) any license or other right to use or grant the user, or to become the registered proprietor or user of any previous item, whether registered or unregistered, recorded or unrecorded, stored or incorporated in any medium of any nature or description.

“License” means a license issued by a Government Agency (including the MIIT) to CEC from time to time authorizing the CEC to provide the Services.

“Party” means CEC or the Customer as the context dictates.

“Services” means any or all of CEC’s conferencing services as specified in the Customer Services Agreement including
(a) Ready Conference;
(b) Auditorium; and
(c) Ready Cast, or any other conferencing service agreed between the parties from time to time

“Special Conditions” means the terms and conditions (additional to the Terms and Conditions set out herein) upon which CEC is willing to provide to the Customer a specific Service as set out in the Customer Services Agreement.

“System” means CEC’s or its supplier’s processing, information management, reporting and conferencing systems.

“Tax” means any tax, including any services tax, withholding tax, charge, rate, duty or impost imposed by any authority, but does not include any income or capital gains tax assessed on the income of CEC

3. SERVICE

This Agreement shall be binding on both Parties only after it is accepted and duly signed by both parties. CEC will provide the Services with due care and skill from the date of commencement in accordance with clause 1.2subject to the Customer being in compliance with CEC’s credit policy requirements from time to time. CEC will use its reasonable efforts to ensure that the Services are provided in a professional or competent manner throughout the term of this Agreement. CEC will notify the Customer as soon as practicable if a System breakdown or a telecommunications network failure adversely affects or may adversely affect the ability of CEC to provide the Services. CEC does not guarantee the availability of the Services. Whilst CEC does provide conferencing accounts and/or dedicated ports for the Customer’s use, congestion or outage of the Services is still possible. CEC may vary the configuration of the System at its discretion and without prior notification to the Customer if, in opinion of CEC, doing so will not adversely affect delivery of the Services. CEC reserves the right to use its Affiliates or subcontractors to perform some or all of its duties and /or obligations hereunder.

4. INPUT DATA

4.1 If CEC is required to load Customer Data, the Customer must deliver the Customer Data to CEC at the place notified by CEC at such intervals and in accordance with the method and manner notified by CEC.

4.2 CEC is not responsible for delays in performing the Services caused by delay or other failure by the Customer in complying with a notice in clause 4.1.

5. CUSTOMER DATA AND USE OF SERVICES

5.1 The Customer acknowledges that in providing the Services, CEC may need to collect and store certain Customer Data.

5.2 The Customer acknowledges and agrees that it is solely responsible for ensuring that all Customer Data and related data which it provides, loads onto, or otherwise uses on the System is free from viruses and other data or software defects, which will or may corrupt, damage or interfere with the normal operation of the System, or any data (including third party data) contained on the System, or result in corrupt or virus infected data being sent to third parties. Without limiting this obligation, the Customer must comply with all physical, electronic and data security procedures, and all other procedures and instructions issued and notified from time to time by CEC concerning the use of its System and, in particular, loading up, using and distributing Customer Data using the System.

5.3 The Customer must comply with all physical, electronic and data security procedures in connection with its use of the Services as notified from time to time by CEC. In particular, the Customer must comply with all instructions relating to the receipt, security and use of all System access and user codes, and must notify CEC immediately of any actual or potential breach of which the Customer becomes aware of CEC’s security procedures or of any access or use code issued to the Customer.

5.4 The Customer warrants that:
(a) all Customer Data, and its use of the System does not, and will not:
i) infringe any third party intellectual property rights;
ii) contain any defamatory, offensive or other information or materials which it is unlawful to distribute in the People’s Republic of China or in any other place to which the Customer Data is distributed or in which it is received; and
(b) the Customer Data is accurate, complete and up to date and has been collected in accordance with, and its use pursuant to this Agreement will not infringe any obligation of the Customer or CEC or any other person at Applicable Law.

5.5 It is the Customer’s responsibility before giving final approval for distribution by CEC of any Customer Data or other data for distribution as part of the Services, to review and confirm the accuracy, completeness and correctness of the message format and such data before distribution by CEC.

5.6 The Customer must maintain a procedure external to the System, for reconstruction of lost, damaged or altered Customer Data.

5.7 The Services are to be used by the Customer solely for conferences or meetings in which the Customer participate.

5.8 The Customer may not resell, distribute, make any commercial use of, use on a timeshare or service bureau basis, use to operate a web-site or otherwise generate income from the Services.

5.9 The Customer may not use the Services to send unsolicited mass mailings outside its company or organization.

5.10 The Customer may not reverse engineer, decompile or otherwise alter the Services.

5.12 CEC shall at its sole discretion, have the right to modify, vary or discontinue any aspect of the Services (whether to the Customer alone or otherwise) upon notice to the Customer

6. CHARGES

6.1 The Customer must pay the Charges and all other applicable fees at the rate set out in the Customer Services Agreement on receipt of and in accordance with the payment terms set out in any tax invoice.

6.2 All Charges are billed in arrears and will generally be based on actual usage of the Services. The Customer acknowledges that the Charges will vary according to its usage of the Services, and that CEC may request an up-front deposit prior to access by the Customer to the Services.

6.3 Certain Services may require a minimum monthly commitment. If this is the case, the Charges for those Services will be billed in arrears based on the higher of the actual usage of the Services and the minimum monthly commitment.

6.4 A subscription to the Services may require the Customer to provide a credit card number and related information. By providing such commercial credit information to CEC, the Customer authorizes CEC to submit the Charges to that credit card number for the Customer’s use of the Services. If the Charges submitted to the Customer’s credit card number are rejected at any time, CEC reserves the right to charge the Customer a processing fee.

6.5 Payment of sums is due on the payment due date specified in the invoice or, if no date is specified, the Customer shall pay the amount of such invoice within thirty (30) days from the date of invoice without set off or deduction.

6.6 Interest shall accrue daily on overdue invoices from the due date until the date of payment, at a rate equals to [0.5% daily compound] . CEC may also impose additional charges to cover its reasonable expenses and costs incurred in recovering outstanding amounts due under this Agreement (including the cost of engaging a debt recovery agent or instituting legal proceedings). Interest shall accrue notwithstanding termination of this Agreement for whatever reason.

6.7 CEC may set off any amount owed by the Customer to the Company against any amount owed by CEC to the Customer under or in relation to the Agreement.

6.8 CEC may vary the Charges from time to time by providing prior written notice to the Customer.

6.9 The Customer shall bear all applicable taxes, duties or imposition of similar nature imposed by any relevant authorities.

6.10 The Charges do not include any amount on account of Tax. If any Tax is payable by CEC in relation to, or on any supply under or in connection with this Agreement, CEC will increase the Charges by, or charge the Customer an additional amount equal to the amount of the Tax. .

6.11 Where Customer requires an invoice for the Charges to be issued to an entity outside of the PRC, Customer acknowledges that CEC may appoint an agent to issue such invoice and collect the Charges on its behalf.

7. COMPLIANCE WITH LAW

7.1 The Customer must comply with and where necessary assist CEC to comply with all Applicable Law applicable to this Agreement or the Services.

7.2 CEC will at all times comply with Applicable Laws regarding the collection, use and treatment of Customer Data and other Customer information.

8. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS

8.1 The Customer shall, and procure its employees and agents, and any sub-contractors engaged for the purposes of this Agreement to, keep confidential and shall not disclose to any person any confidential information of CEC without the prior written consent of CEC unless the disclosure is required by an Applicable Law.

8.2 All Intellectual Property owned by CEC in relation to the Services and the System prior to the commencement of this Agreement shall at all times be retained by and remain vested in the sole, exclusive, absolute and entire beneficial ownership of CEC.

8.3 Both Parties agree that all Intellectual Property of whatever nature developed for the purposes of this Agreement and/or arising out of the provision of Services under this Agreement shall become and remain vested in the sole, exclusive, absolute and beneficial ownership of CEC. The Customer agrees to do everything reasonably necessary to enable CEC to protect its rights in any such Intellectual Property.

8.4 All Intellectual Property owned by the Customer in relation to its business, including the Customer Data, prior to the Commencement of this Agreement at all times be retained by and remain vested in the sole, exclusive, absolute and beneficial ownership of the Customer.

8.5 The Customer hereby grants to CEC a non-exclusive royalty-free license to use any company name, business name or trade mark of the Customer, whether registered or unregistered, for the purposes of providing the Services and in connection with any marketing, advertising or other communication to the public by CEC.

8.6 CEC does not under the Agreement or as a result of the provision of the Services:
(a) assign any intellectual property right of CEC or any third party to the Customer; or
(b) grant any license to the Customer in respect of any intellectual property right of CEC or any third party.

8.7 This clause 8 survives termination of this Agreement.

9. GENERAL CUSTOMER OBLIGATIONS

9.1 The Customer shall promptly notify CEC if the Services are not provided by CEC in accordance with this Agreement and CEC shall use all reasonable endeavours to restore provision of the Services in accordance with this Agreement.

9.2 The Customer warrants and undertakes that it shall not use the Services or the System for any illegal or immoral purpose or in breach of any Applicable Law or third party rights.

9.3 The Customer shall indemnify CEC against any losses (including consequential loss), liabilities, costs and expense incurred as a result of any act or omission of the Customer or any third party, or as a result of any failure by the Customer to fulfill its obligations under this Agreement or as a result of an act or omission of a Customer (including negligence), causing loss or damage to any third party.

9.4 The Customer shall indemnify CEC and shall hold CEC harmless against any claims or proceedings brought by third parties against CEC in respect of, or arising directly or indirectly from, the resale of the Services by the Customer to such third parties.

9.5 The Customer agrees that any Internet Protocol addresses allocated by CEC to the Customer (if any) remain as the property of CEC. The Customer undertakes not to advertise, or otherwise to broadcast, such addresses upon termination neither of the Services, nor to use the word “CEC”, “China Enterprise Communications Limited” in any way as a business or company name or trade mark.

10. IMPLIED TERMS

10.1 Subject to clause 10.2, any condition or warranty which would otherwise be implied in this Agreement is excluded.

10.2 If any condition or warranty is implied with this Agreement by legislation, and may not be excluded or modified, then the liability of CEC for any breach of that condition or warranty is limited, at CEC’s option, to:
(a) supplying of the Services again; or
(b) paying the cost of having the Services supplied again.

11. LIABILITY OF CEC

11.1 CEC shall not be liable to the Customer or any third party in relation to any loss, cost, claim, damage liability expense or consequence or expense suffered by the Customer which:
(a) is special, indirect, incidental or consequential in nature including loss of actual or anticipated profit, interruption to data or computer time, loss due to any inaccuracy, alteration or any transmission of data, unauthorized access to data processed or transmitted by, to or through the Service, whether or not CEC is advised in advance of the possibility of such loss and damage;
(b) results from the unavailability of the Service for any reason whatsoever, including any System downtime;
(c) is caused partly or solely by the Customer Equipment, to the extent that such Customer Equipment causes the same; and
(d) is caused by the incorrect operation by the Customer of its Customer Equipment and Service instructions.

11.2 To the extent permitted by law CEC’s liability under the Agreement or for or in relation to its performance of this Agreementis limited at its election to supplying the Services again or paying the cost of supplying the Services again

11.3 In addition to the limitations under clauses 11.1 and 11.2 and to the extent permitted by law CEC’s total liability under the Agreement or for or in relation to the performance of the Agreement is limited to an amount equivalent to the total of CEC’s invoiced Charges to the Customer for the obligations it failed to perform (if any).

11.4 Subject to clause 11.3, the Customer warrants that it has not relied on any representations made by CEC which have not been stated expressly in this Agreement, or on any descriptions, illustrations or specifications in any document including catalogues or publicity material produced by CEC.

11.5 The Customer acknowledges that in relation to any express CEC representations in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of those representations.

11.6 This clause 11 survives termination of this Agreement

11.6 Nothing in the Agreement excludes or restricts a party’s liability for death or personal injury resulting from the negligence of that party.

12. TERMINATION AND WITHDRAWAL OF THE SERVICES

12.1 Without limiting its rights at law or in this Agreement, CEC may terminate this Agreement immediately by notice if:
(a) CEC considers that any Customer Data is offensive, defamatory or otherwise in breach of any Applicable Law;
(b) CEC receives any lawful direction to do so by any Government Agency; or
(c) the Customer is otherwise in breach of any term of this Agreement and the breach is not remedied within thirty (30) days of a notice from CEC to rectify the breach.
(d) the Customer is in material breach of the Agreement including but not limited to the failure to pay any amounts owing in accordance with the Agreement; or
(e) CEC suspects fraud or misuse of the Services; or
(f) CEC is named as a defendant or threatened with a lawsuit in any action or proceeding in which it is alleged that the Services has been used to carry defamatory material; or
(g) the Services is used by the Customer or any third party:
(i) in a manner which constitutes an infringement of the rights of any person or a violation or infringement of any duty or obligation in contract, tort or otherwise, to any third party; or
(ii) in any manner which is unauthorized, fraudulent, suspicious or illegal, whether under any Applicable Law or otherwise; or
(iii) for any improper purpose or for the purpose of sending any unsolicited advertising material or any material of an obscene or indecent nature; or
(h) in the case of a Customer that is an individual, the Customer dies; or
(i) in the case of a Customer that is a legal entity (including a partnership) that Customer becomes or there is evidence to show that the Customer is likely to become insolvent or bankrupt, subject to a winding up proceeding, has a receiver appointed, is dissolved or in the process of dissolution, makes any arrangement for the benefit of creditors, or initiates or becomes or there is evidence to show that the Customer is likely to become subject to any other form of insolvency proceeding; or
(j) CEC is prohibited from supplying the Services under any Applicable Law; or
(j) any of the information provided by the Customer to CEC in applying for the Services is found to be false, inaccurate or misleading in a material respect; or
(k) CEC has a specific right to terminate the Services under the Special Conditions; or
(j) there is evidence to show that the Customer is or will be unable to pay its debts as and when they fall due.

12.3 Termination of the Services or the Agreement shall not relieve the Customer of its obligation to pay any Charges in respect of Services received hereunder.

12.4 This clause 12 survives termination of this Agreement.

13. READYCAST SPECIFIC TERMS AND CONDITIONS

13.1 Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications using Customer’s account. Customer agrees that Customer will not wilfully, intentionally and/or knowingly use the ReadyCast Service to send unsolicited mass mailings outside Customer’s company or organisation. Customer further agrees not to wilfully, intentionally and/or knowingly use the ReadyCast Service to communicate any messages or material that is harassing, libellous, threatening, obscene, would violate the Intellectual Property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Although CEC is not responsible for any such communications, CEC may delete any such communications of which CEC becomes aware, at any time with notice.

13.2 Other than using the Services for conferences or meetings in which Customer is an active participant, and as permitted under the terms and conditions of this Agreement or other written agreements between Customer and CEC, Customer may not resell, distribute, make any commercial use of, use on a timeshare or service bureau basis, or use to operate a web-site or otherwise generate income from the ReadyCast Service.

13.3 This clause applies to all use of the ReadyCast Service by or for the United States Government, or any other government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. Use of the ReadyCast Services by Customer involves incidental access to or use of commercial computer software developed exclusively at private expense, and which in all respects comprise proprietary data belonging to CEC or its third party suppliers. By acquiring the ReadyCast Services, the government hereby agrees that the ReadyCast Service qualifies as "commercial" computer software within the meaning of the acquisition regulation(s) applicable to this procurement. The acquisition or use of ReadyCast Services does not include the acquisition or delivery of any software or any rights therein. The terms and conditions of this clause shall govern the government’s use of the ReadyCast Services, and shall supersede and take precedence over any conflicting contractual terms or conditions. If this provision fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to decline access to, or use of, the ReadyCast Service

14. FORCE MAJEURE

14.1 Neither Party is liable for any delay or failure to perform its obligations pursuant to this Agreement if the delay is due to Force Majeure.

14.2 If a delay or failure of a Party to perform its obligations is caused by Force Majeure, the performance of that Party’s obligations will be suspended.

14.3 If a delay or failure in clause 14.2 exceeds thirty (30) days, either Party may immediately terminate the Agreement on providing written notice to the other Party.

15. SUB-CONTRACTS

15.1 CEC may sub-contract the performance of this Agreement or any part of this Agreement as it considers necessary.

15.2 CEC will continue to be responsible to the Customer for the Services and its obligations under this Agreement which may be performed by a subcontractor.

16. ENTIRE AGREEMENT

16.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. PRECEDENCE

17.1 The documents in this Agreement must be interpreted in the following descending order of precedence:
(a) these standard terms and conditions;
(b) the Customer Services Agreement;
(d) any other document referred to in, or annexed to these terms and conditions

18. ASSIGNMENT AND NOVATION

18.1 The benefit of this Agreement may not be assigned or novated by the Customer without CEC’s written consent.

19. WAIVER

19.1 Any failure by any Party to exercise any right under this Agreement shall not operate as a waiver of that right.

20. VARIATION

20.1 CEC may vary this Agreement by giving the Customer reasonable notice of the variation. The Customer may vary the Services accepted in the Customer Services Agreement by reasonable notice to CEC.

21. SURVIVAL OF AGREEMENT

21.1 This Agreement continues for the benefit of and is binding on the Parties and their successors, trustees, permitted assigns or receivers.

22. SEVERABILITY

22.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement remains in full force as if the invalid, unenforceable or illegal provisions were deleted.

23. GOVERNING LAW

23.1 This Agreement is governed by and construed according to the law of the People’s Republic of China. The Parties agree that any legal action or proceedings arising out of or relating to this Agreement shall be brought in the courts of Beijing, China and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of such courts.

24. NOTICES

24.1 All notices required under this Agreement shall be in writing and shall be by personal delivery, telegram, telex, telecopy, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, three (3) days after deposit in the mail, or upon acknowledge of receipt of receipt of electronic transmission. Notices shall be sent to the addresses set forth or such other address as either Party may specify in writing.