Definitions and Interpretation

In these General Terms and Conditions, the following words have the following meanings unless the context otherwise requires:

Acceptable Use Policy means the Acceptable Use Policy of China Unicom and its amended version from time to time, the current version of which is set out in Schedule 1.

Access Policy means the access policy of China Unicom and its amended version from time to time, the current version of which is set out in Schedule 2.

Agreement means the agreement between Customer and China Unicom in respect of the Service provided by China Unicom to Customer comprising these General Terms and Conditions (including the Schedules) and the Application.

Applicable Law(s) means (a) any law, rule or regulation of any jurisdiction applicable to the Service, the Customer's use of the Service or the provision of any Customer Service to any person; (b) obligations under any licence held by China Unicom, the Customer or any person to whom the Customer provides Customer Services; (c) any determination, decision or direction, guideline, statement or code of practice issued by a government and/or Government Agency which has binding effect on the Customer and China Unicom; and (d) any applicable international convention or agreement.

Application means the Application Form or Customer Order Confirmation for the Service duly signed and submitted by Customer to China Unicom.

Business Day means a day other than: a）a Saturday or Sunday; b) a general holiday (as defined in the General Holidays Ordinance (Cap 149 of the Laws of Hong Kong); or c) a day on which a tropical cyclone No. 8 or above or a “black” rainstorm warning is hoisted in Hong Kong at any time between 9:00 am and 5:00 pm and, if hoisted before 11:59 am on that day, is not lifted before 12:00 pm on that day.

Buildings means the buildings where the Site is located.

Charges means the charges set out in the Application and other charges for which Customer is liable to pay to China Unicom pursuant to this Agreement.

Confidential Information means the terms and existence of this Agreement, any trade secret, information, data, maps, facility system design, prices, technique, algorithm, computer program (source and object codes), design, drawing, formula or test data, relating to any research project, work in process, future development, engineering, manufacturing, marketing plans, servicing, financing or personnel matter relating to the Party, its present or future products, sales, suppliers, clients, customers, employees, investors or business, whether in oral, written, graphic or electronic form.

China Unicom means China Unicom (Hong Kong) Operations Limited or the China Unicom entities stated in the Application acting on behalf of China Unicom (Hong Kong) Operations Limited, as the case may be.

China Unicom Equipment means the equipment (including any software) owned by China Unicom or licensed to China Unicom by a third party and placed at the Site.

Customer means the customer whose name and address are set out in the Application.

Customer Equipment means equipment (including any software) installed by Customer reasonably necessary (as determined by China Unicom) to establish, operate and facilitate the provision of the Services by China Unicom to Customer under this Agreement.

Customer Information means the information of customer (including personal information) provided to China Unicom in connection with the provision of Service.

Customer Service means telecommunications service, if any, supplied by Customer to any third party using or via the Service.

Early Termination Charge means the aggregate of all the monthly Charges for the terminated Services from the date of termination to the end of the Initial Term for such Service.

Force Majeure Event means, in relation to a Party, an event out of such Party’s reasonable control, including without limitation any flood, fire, lightning, earthquake, storm, explosion, meteor, accident, embargo, blockade, strikes, riot, civil disorder, insurrection, mob violence, any kind of war or war-like conditions, act of terrorism or of the public enemy, epidemic, pandemic, quarantine, inability to procure materials or transportation facilities, national or regional emergency, mechanical or electrical breakdowns, power outage, labour dispute or shortage, act or failure to act of any Government Agency, change in laws and regulations, act of God, or any other events or circumstances beyond the reasonable control of the concerned Party; provided that for the avoidance of doubt, any inability to pay amounts due shall not be considered a Force Majeure Event.

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 Communications Authority.

Hosting Area means the hosting area situated at the Site and as specified in the Application in which China Unicom provides Services to Customer under this Agreement; where such area can be subdivided, then each such subdivision shall be a “Hosting Area”.

Initial Term means the commitment period for the Service as agreed by the Parties in this Agreement.

Interest Rate means a rate of interest which is equal to ten per cent (10%) per annum compounded daily on the outstanding amount from the due date until date of payment.

Network means the telecommunications network owned or operated by China Unicom in accordance with its telecommunication licence including all facilities and associated equipment used in, or in connection with, that network.

Parties means parties to this Agreement.

Personal Information means any data relating directly or indirectly to a living individual, from which it is practicable for the identity of the individual to be directly or indirectly ascertained, and in a form in which access to or processing of the data is practicable.

Professional Adviser means a lawyer, accountant, auditor, financial adviser, banker, technical adviser (including, where necessary, a sub-contractor and relevant technical personnel or a supplier to either Party) and any other professional adviser retained to provide advice in relation to this Agreement.

Service means the service provided by China Unicom as described in the Application, this Agreement and the Schedules.

Service Commencement Date means the earliest of (i) the expiry of seven (7) days from the Service Ready Date; or (ii) the date that Customer places any or all Customer equipment in the Hosting Area.

Service Ready Date means the date that China Unicom is ready to provide Service to Customer, as agreed by the Parties in the Application provided that China Unicom shall have the right to defer the Service Ready Date for not more than 14 days by giving prior written notice to Customer.

Set Up Charge means the applicable set-up charge specified in the Schedules and/or the Application.

Site means the UniCloud Exchange Center of China Unicom situate at the address set out in the Application to which these Terms and Conditions are attached.

Unauthorised Activity means any act or omission in relation to the Services or the Customer Service that is in breach of any Applicable Law or the Acceptable Use Policy.

UniCloud Exchange Center Service or Service means the service whereby China Unicom will host the Customer Equipment on China Unicom’s racks in the Hosting Area for connection to any other telecommunications services provided by China Unicom. Full particulars of the Service are set out in the Application.

Unified Carrier Licence means the Unified Carrier Licence granted by the Communications Authority to China Unicom (Hong Kong) Operations Limited for the provision of fixed telecommunications services or its equivalent replacement licence granted by the Government Agency in Hong Kong.

1. SERVICE

1.1 Application. To request for Services under this Agreement, Customer shall sign and submit an Application to China Unicom. Customer must specify an Initial Term for Services in the Application. If no Initial Term is specified in the Application, the Initial Term will be ONE (1) year from the Service Commencement Date. China Unicom shall confirm the accuracy of information and availability of Services specified in the Application. Upon the acceptance of the Application by China Unicom, China Unicom shall provide Services set out in the Application in accordance with this Agreement.

1.2 Services. China Unicom shall provide Services as detailed in the Application to Customer from the Service Commencement Date. Customer may use the Hosting Area only for the purposes of maintaining and operating Customer Equipment as necessary for China Unicom to provide Services to Customer. Nothing herein contained shall constitute a licence or subletting of the Hosting Area to Customer.

1.3 Access. Customer will have access to the Hosting Area on a 24-hour basis subject to the compliance of the Access Policy.

1.4 Ancillary Service. In connection with the Hosting Area made available hereunder, China Unicom shall during the Term of this Agreement, provide ancillary services which support the overall operation of the UniCloud Exchange Center including janitorial services, environmental systems maintenance, and power plant maintenance at no additional charge to Customer.

1.5 Hosting Area Condition. Customer shall maintain the Hosting Area in an orderly manner and shall remove trash, packing, cartons, etc. from the Hosting Area. Customer shall maintain the Hosting Area in a safe condition, including but not limited to the preclusion of storing any materials which are not directly related to the Service in the Hosting Area of the Site.

2. CHARGES AND PAYMENT TERMS

2.1 Charge. Customer agrees to pay China Unicom the Charges set out in the Application for Services. China Unicom will commence billing for Charges on the Service Commencement Date. China Unicom will bill Customer the Charges of the first month upon signing of this Agreement and thereafter in advance on the first date of each subsequent month during the Term of this Agreement. If any monthly Charges commences on a date other than the first day of a month or terminates on a date other than the last day of a month, the Charge due for a part month shall be calculated pro-rata, on a thirty (30)-day month basis.

2.2 Deposit. China Unicom may request Customer to pay a security deposit (“Deposit”) amounting to one month’s total Charges as security for Customer’s performance of this Agreement upon signing of this Agreement. If there shall be any charges in arrears or any breach of any terms by Customer, China Unicom may apply Deposit towards such arrears or remedying such breach and Customer shall top up any amount deducted within fourteen (14) working days upon written request from China Unicom. At the expiration or early termination of the Agreement, provided there shall be no breach of any terms herein by the Customer, China Unicom will return the Deposit without interest to Customer within three (3) months after the expiration or early termination of the Agreement.

2.3 Other Charges. If Customer requests China Unicom to provide services not specified in the Application but set out in the Appendix at any time during the Term of this Agreement, Customer agrees to pay China Unicom’s charge as set out in the Appendix for such service in effect at the time when such service was rendered.

2.4 Exclusive of Taxes. All Charges are exclusive of applicable value-added, sales, use, excise, customs, duties or other taxes, fees or surcharges (including but not limited to regulatory fees or surcharges) (“Taxes”).Customer agrees to pay or reimburse China Unicom for any applicable Taxes that are levied based on the transactions hereunder, exclusive of China Unicom’s income and profit taxes to the government of the HKSAR on the Colocation Space. Any such Taxes shall be invoiced and payable within the payment terms of this Agreement. China Unicom agrees to provide Customer with reasonable documentation to support invoiced amounts for Taxes within thirty (30) calendar days of receipt of Customer’s written request.

2.5 Due Date. Customer shall pay all invoices in full within fourteen (14) days from the date of invoice (“Due Date”) without any set-off, counterclaim or deduction. Where applicable, China Unicom may set-off any amounts it owes to Customer against any amounts owed by Customer to China Unicom under this Agreement. China Unicom may in its sole discretion charge interest from the Due Date to any past due amount at Interest Rate.

2.6 UPS Charges Adjustment. Customer acknowledges that the Monthly Recurring Charge (“MRC”) comprises of utilities charges and/or charges imposed by third party service providers. In the event of any increase of such charges imposed by third party service providers, China Unicom reserves the right to vary the MRC charges to reflect such extra costs incurred in providing the Service to Customer. China Unicom will give Customer thirty (30) days’ prior written notice of such change.

3. TERM

3.1 Initial Term. Unless otherwise specified in the Application, the Initial Term of this Agreement shall commence on the Service Commencement Date and shall continue in full force and effect for one (1) year.

3.2 Renewal Term. Upon expiry of the Initial Term, this Agreement shall be automatically renewed on a monthly basis until either party giving to the other party not less than thirty (30) days prior written notice of termination.

3.3 Term. Throughout this Agreement, references to the “Term” of this Agreement shall include the Initial Term and Renewal Term(s), if any, for which Customer effectively exercises the renewal option. If all of the conditions stated to efficacy of the renewal option are not timely satisfied, then this Agreement shall expire on the last day of, as applicable, the expiring Initial Term or Renewal Term. As of the date each Renewal Term begins, this Agreement shall be deemed modified in the manner set forth above, without the necessity of any further agreement or document; provided, however that either party to this Agreement shall, upon request of the other party, execute, acknowledge, and deliver an instrument evidencing such renewal and modification of this Agreement.

3.4 If Customer wishes to terminate the Service, Customer shall fill in a termination form to be provided by China Unicom upon request. Such form must be effectively executed by Customer and served on China Unicom in accordance with Clause 18.6.

4. USE OF SERVICE

4.1 Customer shall:

(a) use the Services in accordance with the Agreement, the Acceptable Use Policy and all Applicable Law;

(b) promptly notify China Unicom of any Unauthorised Activity in relation to the Service, a Customer Service or the Network of which the Customer becomes aware;

(c) co-operate with China Unicom in establishing procedures to eliminate or reduce Unauthorised Activities and the opportunity for Unauthorised Activities;

(d) provide such information to China Unicom as is available to the Customer which may be of assistance to China Unicom in identifying and preventing Unauthorised Activities;

(e) promptly notify China Unicom of any fault in the Service or deterioration in the quality of the Service; and

(f) comply with directions given by China Unicom from time to time in relation to:

(i) modifications required to any apparatus at Hosting Area or other action necessary to be taken to eliminate any interference, impediment or impairment to the Service or the Network; or

(ii) any use of the Service that is reasonable or prudent to ensure that Customer complies with this Clause 4.1.

4.2 In promoting or supplying any Customer Service or making any public statement in relation to the Service or any Customer Service, Customer shall not make any representation that:

(a) Customer Service is supplied using the Network;

(b) passes off or misrepresents that Customer Service is provided in whole or in part by China Unicom; or

(c) Customer is authorized to act for or on behalf of China Unicom.

4.3 China Unicom may suspend all or part of the Services and/or refuse the Customer’s access to the Hosting Area in the following cases:

(a) where China Unicom is required to suspend or withdraw provision of all or part of the Services pursuant to any regulatory, governmental or legal prohibition or to comply with all Applicable Law or any applicable requirement, regulation, policies, order or directive of any relevant Government Agency;

(b) where any act or omission by the Customer or the Customer authorised personnels, or due to the Customer Equipment, affects China Unicom’s ability to provide all or part of the Services or own or operate in the Buildings, or the ability of the Customer to receive all or part of the Services; and

(c) where the Customer commits a material breach of the Agreement (including without limitation breach of obligations under Schedule 1 and Schedule 2).

5. INSTALLATION OF EQUIPMENT

5.1 Customer shall not make any construction changes or material alterations to any part of the Hosting Area, including any cabling or power supplies for Customer Equipment, without obtaining China Unicom’s written consent. China Unicom reserves the right to perform and manage any construction or material alterations within the Hosting Area.

5.2 Customer’s use of the Service, installation of Customer Equipment and access to the Hosting Area shall at all times be subject to Customer’s adherence to the generally accepted industry standards, security rules and rules of conduct established by China Unicom for the Site. Customer agrees not to erect any signs or devices on the exterior portion of the Hosting Area without obtaining China Unicom’s written approval.

5.3 Customer shall not provide or make available to any third party any space within the Hosting Area without China Unicom’s prior written consent. Breach of this Clause 5.3 will deem an irremediable breach and China Unicom shall be entitled forthwith to terminate this Agreement and claim against Customer for any consequential loss and damage it may have suffered by reason of such breach.

5.4 Notwithstanding anything herein to the contrary, China Unicom shall be entitled by giving Customer sixty (60) days prior written notice or, in the event of an emergency, such time as may be reasonable in the circumstances, to change the location of the Hosting Area to another hosting area in Hong Kong which shall afford comparable environmental conditions for Customer Equipment and comparable accessibility to Customer Equipment in which event China Unicom shall as far as possible try to minimize any disruption of Customer’s services as a result of such relocation.

6. INSURANCE

6.1 Customer agrees to keep and maintain in full force and effect, at Customer’s expense, during the Term of this Agreement general liability insurance to cover bodily injury or property damage, liability insurance and property insurance coverage for the full value of Customer Equipment and its other property situated in the Site with coverage which is not less than that is required by Applicable Law, as are prudent in light of the nature and form of the Services being provided to the Customer by China Unicom under the Agreement, and against such risks and liabilities customary for businesses similar to its business, including without limitation:.

(a) insurance in respect of the Customer Equipment against all risks, including physical damage, pilferage, theft, non-delivery and fire;

(b) insurance against any and all liability, including:

(i) public liability;

(ii) liability in respect of intellectual property and communications; and

(iii) loss or damage of any kind whatsoever arising from the installation or use of the Customer Equipment or the Services; and

(c) other insurance policy or policies are required by laws.

6.2 The taking up and maintenance of insurance policies by the Customer shall not affect or limit the extent of the Customer's liability under the Agreement.

6.3 The Customer agrees not to do anything which would or might prejudice or invalidate the insurance of the Buildings or cause any premium for its insurance to be increased.

6.4 Prior to placing Customer Equipment on the Hosting Area, Customer shall, upon request, furnish China Unicom with certificates of insurance, with paid receipts for the same which evidence the minimum levels of insurance set forth herein.

7. TERMINATION

7.1 Customer Termination. Customer is entitled to terminate (in whole or in part) the Service with immediate effect by serving China Unicom written notice if:

(a) China Unicom is in material breach of this Agreement (which shall (i) exclude a failure by China Unicom to provide any Service and/or the associated China Unicom Equipment in accordance with the service level set out in a service level agreement, if any, but, (ii) subject to Clause18.1, include where China Unicom is unable to restore all the Services from serious outage) and that breach (in the case of a breach capable of being remedied) is not remedied within thirty (30) days after written notice of breach has been served by Customer on China Unicom;

(b) China Unicom shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if China Unicom shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business or analogous event in the jurisdiction in which China Unicom is incorporated;

(c) China Unicom’s Unified Carrier Licence: (i) expires without renewal; or (ii) is suspended (without a resumption date or reactivation); or (iii) is being cancelled, revoked or terminated (in each case, without renewal or replacement with an equivalent licence); or

(d) the Force Majeure Event continues for a continuous period of ninety (90) days or more.

7.2 China Unicom Termination. Without prejudice to any other rights or remedies it may have (whether under this Agreement or at law), China Unicom is entitled to suspend or terminate, in whole or in part, the Service with immediate effect by serving Customer written notice if:

(a) Customer fails to pay for any amount of Invoice in full by the Due Date and such amount remains outstanding for a further period of fourteen (14) days after China Unicom has given written notice of such failure to pay; or

(b) Customer committed a breach of any material obligation under this Agreement and in the case of a remediable breach, fails to remedy the breach within thirty (30) days after receiving a written notice to do so issued by China Unicom; or

(c) any license, consent or approval of the governmental authority required in connection with the business of Customer provided under this Agreement is revoked, withdrawn, suspended or expired (without a replacement license being granted immediately); or

(d) Customer shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if a party shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business or analogous event in the jurisdiction in which such party is incorporated; or

(e) the Force Majeure Event continues for a continuous period of ninety (90) days or more.

7.3 Notwithstanding any other provision of this Agreement and in case that China Unicom no longer has the right to use or access the Site for whatsoever reason, China Unicom shall have the right to terminate this Agreement at any time without compensation and liability to Customer by giving Customer one (1) month’s prior written notice.

7.4 Early Termination Charge. Subject to other provisions of this Clause 7, no early termination by Customer during the Initial Term is allowed. In the event that this Agreement is terminated by China Unicom in accordance with Clauses 7.2 (a) to (d) or by Customer on any ground other than Clause 7.1(a) to (c) during the Initial Term, Customer shall, on termination, pay China Unicom the Early Termination Charges and any other termination charges as specified by China Unicom in this Agreement. Early Termination Charge is an agreed reasonable pre-estimate of the anticipated losses and damages suffered by China Unicom if the Agreement is terminated in accordance with this Clause 7.4 before the expiration of the Initial Term.

7.5 Termination Consequence. Upon expiration or termination of this Agreement, (a) all monthly Charges for use of Services up to and including on the date of termination and all other amounts owing by Customer to China Unicom will become immediately due and payable; (b) Customer shall cease to use the Hosting Area and Services; and (c) China Unicom is authorized to exercise its rights provided for under Clause 7.7 herein below. Customer shall pay for all charges due, and remove all its equipment and other property installed or bought on the Hosting Area by it and/or its agents.

7.6 Suspension, expiration or termination of this Agreement shall not prejudice or affect any right or remedy which will have accrued or will thereafter accrue to China Unicom before the date of suspension, expiration or termination. In the event that invoices are not settled by Customer by the Due Date or such Customer Equipment or property not being removed within three (3) days of the termination or expiration date of the Term, Customer Equipment or property shall be deemed abandoned by Customer in which event China Unicom may dispose of the same or any part thereof at its absolute discretion.

7.7 If China Unicom elects to remove Customer Equipment or other property of Customer, Customer shall upon demand by China Unicom reimburse to China Unicom all its costs of removal and storage of any such equipment or other property if China Unicom so elects. In either event, Customer agrees that notwithstanding the same, China Unicom shall not be liable for conversion of such equipment or property or any part thereof and that it shall not be liable for any damage to such equipment or property or any part thereof.

7.8 China Unicom shall have a lien on Customer Equipment and is entitled to retain Customer Equipment or to sell Customer Equipment at any price and in such manner as it sees fit for repayment of any outstanding payment due and owing by Customer.

8. LIMITATIONS OF LIABILITY

8.1 Personal Injury. Each Customer Representative and any other persons visiting China Unicom premises does so at his or her own risk and China Unicom shall not be liable for any harm to such persons resulting from any cause other than negligence of China Unicom, its employees, agents or contractors resulting in personal injury to such persons during such a visit.

8.2 Damage to Customer Business. In no event shall China Unicom be liable to Customer or any third party for any claims arising out of or related to Customer’s business, Customer’s customers’ or clients’ activities at China Unicom network or Site or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, punitive, direct, indirect or consequential damages, loss of data, or interruption or loss of use of service or of any Customer’s business, even if advised of the possibility of such damages, whether under law of contract, tort (including negligence), strict liability or otherwise. In addition, China Unicom shall not be liable for the following acts, save and except if such acts are committed by gross negligence of China Unicom or its authorized agent:

(a) any error or interruption in, or unavailability of, the Service or any damage, malfunction or failure in performance of Customer Equipment;

(b) any failure to prevent unauthorized access to, or alteration, theft, destruction of the Hosting Area, Customer Equipment;

(c) any act or omission of China Unicom in accordance with Customer’s instructions;

(d) any loss, corruption, error, inaccuracy, delay, interruption of use of any data or information provided by, or through, Customer Equipment;

(e) any delay, suspension, outage, interference in Network; and

(f) any losses, damages or injuries resulting from Customer’s negligence, misconduct or fraud.

8.3 Limitation of Claim. Subject to Clause 8.1, 8.2 and 8.4 hereof, the liability of each Party by reason of or arising out of this Agreement and regardless of the form in which any legal or equitable action may be brought (whether in contract, tort, strict liability or otherwise) is limited to the aggregate of all Charges paid and payable by Customer to China Unicom under this Agreement.

8.4 Exclusion. Clause 8.3 does not apply to Customer’s liability to pay any Charges and Interest to China Unicom under this Agreement.

8.5 Indemnification by China Unicom. Except to the extent attributable to any breach of this Agreement by Customer, or the negligence or wilful default of Customer, its employees, agents or subcontractors, China Unicom, subject to Clauses 8.1, 8.2 and 8.3 hereof, indemnify and hold Customer harmless from all claims, demands, actions, proceedings, liabilities, losses, damages, charges, costs and expenses arising from or relating to:

(a) any damage to or loss of equipment, facility or other tangible property of Customer or a third party permitted by China Unicom to be placed at the Hosting Area which are caused by China Unicom, its employees, agents or subcontractor; and

(b) the death or personal injury of any officer, employee, agent, representative or contractor of China Unicom or of any other party if the death or personal injury is caused by China Unicom, its employees, agents or subcontractor.

8.6 Indemnification by Customer. Except to the extent attributable to any breach of this Agreement by China Unicom, or the negligence or wilful default of China Unicom, its employees, agents or subcontractors, Customer shall, subject to Clauses 8.1, 8.2 and 8.3 hereof, indemnify China Unicom and hold China Unicom harmless from all claims, demands, actions, proceedings, liabilities, losses, damages, charges, costs and expenses arising from or relating to:

(a) any damage to or loss of the China Unicom Equipment or any other properties (whether owned by China Unicom or not) which are caused by Customer, its employees, agents, subcontractors, Affiliates or its customers;

(b) the death or personal injury of any officer, employee, agent, representative or contractor of China Unicom or of any other party if such death or personal injury is caused by (i) the Customer, its employees, agents, subcontractors, Affiliates or its customers; or (ii) Customer Equipment and any other equipment or facility of Customer; and

(c) any action or claim brought by a third party (whether alone or collectively with other third parties) against China Unicom which relates to all or any part of the Customer Equipment, services and/or contents provided by Customer, including, without limitation, any infringement of Intellectual Property Rights, defamation or misappropriation of trade secrets.

9. WARRANTIES AND DISCLAIMERS

9.1 Customer acknowledges that no representation has been made by China Unicom as to the fitness of the Service or Hosting Area for Customer’s intended purpose.

9.2 There are no other warranties, either express, implied, oral or written with respect to the Hosting Area or services covered or furnished pursuant to this Agreement, including but not limited to, any implied warranty of merchantability or fitness for a particular purpose.

10. CONFIDENTIALITY

10.1 Each party agree to keep and procure to be kept secret and confidential of all information or data of any nature disclosed by the other party under to this Agreement or during the course of negotiations relating to it. Each party shall be entitled to reveal the information relating to the other party only to its and its Affiliates’ directors, officers, employees, Professional Advisors and their employees, contractors and their employees (“Representatives”) so far as necessary to enable them to perform their duties for the purpose of this Agreement. Each party shall require its Representatives to observe the obligation of confidentiality contained in this Clause 10.

10.2 This Clause 10 shall not apply, however, to any part of the information which:

(a) was already known to the receiving party prior to receipt thereof;

(b) was acquired by the receiving party from a third party having the right to convey the information to the receiving party without any obligation of confidentiality not to disclose the same;

(c) is approved for release by prior written authorization by the disclosing party of the information;

(d) is in the public domain other than in breach of this Agreement;

(e) is legally required to be disclosed.

10.3 Each party agrees that the entirety of this Clause 10 shall survive after the expiration or termination of this Agreement for a period of two (2) years. The Parties acknowledge that a violation of this Clause 10 would cause irreparable harm to the disclosing party, for which monetary damages would be inadequate and injunctive relief may be available for a breach of this Clause 10.

11. CUSTOMER INFORMATION

11.1 If China Unicom requests Customer Information from Customer, Customer may decline to provide that Customer Information but in that event China Unicom may decline to provide the Service to Customer.

11.2 Customer agrees that China Unicom may use Customer Information for any and all of the following purposes, or any purpose directly related to them:

(a) provision of the Service to Customer (including the transfer of such Customer Information to other telecommunications network providers or third parties as necessary for the provision of the Service and goods and services supplied in connection with the Service);

(b) marketing by China Unicom of its goods and/or services (including related goods and/or services of its agents or Affiliates);

(c) analysing, verifying and/or checking of Customer's credit, payment and/or status in relation to provision of the Service or other telecommunications services of China Unicom and/or its Affiliates;

(d) processing of any payment instructions, direct debit facilities and/or credit facilities in relation to provisioning of the Service or other telecommunications services of China Unicom and/or its Affiliates or requested by Customer;

(e) enabling the daily operation of Customer's account and/or the collection of amounts outstanding in Customer's account in relation to the Service or other telecommunications services of China Unicom and/or its Affiliates;

(f) enabling China Unicom to comply with its obligations to interconnect, with other industry practices, or with obligations to third parties or the Government Agencies in relation to the Service or other telecommunications services of China Unicom and/or its Affiliates;

(g) disclosure as permitted or required by law or Government Agency for the purpose of prevention or detection of crime; and

(h) any other purposes as may be agreed to by the Parties.

11.3 Customer agrees that the Customer Information may be disclosed and transferred in Hong Kong or to/in places outside Hong Kong to China Unicom's Affiliates, agents, contractors, telecommunications operators, any other third parties (including, collection agencies, credit reference agencies, security agencies, credit providers or other financial institutions and any of China Unicom's actual or proposed assignees or transferees) for such person to use, disclose, hold, process, retain or transfer such Personal Data for the purposes listed in clause 11.2.

11.4 Customer shall, as soon as practicable, notify China Unicom of any change of address or any other particulars provided to China Unicom which may affect the provision of the Service to Customer.

11.5 Upon request by China Unicom, Customer shall provide China Unicom with information relating to Customer and its use of the Service reasonably required by China Unicom:

(a) to assist China Unicom in complying with its obligations under any Applicable Law and to report to any Government Agency regarding compliance with those obligations; and

(b) to assess whether or not Customer has complied, is complying and will be able to continue to comply with all its obligations under the Agreement.

12. ANTI-MONEY LAUNDERING REQUIREMENTS

12.1 Customer shall comply with all Applicable Law(s) on anti-money laundering, counter-terrorism financing, counter-proliferation financing, and sanctions (together “AML”). Customer shall fully cooperate with China Unicom's reasonable due diligence (on site or in writing) of Customer’s identity, its beneficial ownership, and AML policies and procedures, which includes but is not limited to its sanctions and politically exposed person review and suspicious transactions monitoring and reporting procedures. China Unicom reserves the right to retain copies of identification evidence and supporting documentation obtained in relation to Customer. In accordance with its AML, anti-fraud, and other compliance and security policies and procedures, China Unicom may place any approval process for Customer's transaction on hold, or impose reasonable limitations and controls on Customer’s ability to utilize the Services. Such limitations may include but are not limited to rejecting payments, or suspending/restricting any Service. China Unicom may, for the purposes of complying with relevant suspicious transaction reporting and tipping-off requirements under Applicable Law(s), report suspicious transactions to the relevant authorities without informing Customer.

13. ETHICAL AND ENVIRONMENTAL COMPLIANCE

13.1 Customer undertakes to comply with, and to require its sub-contractors and any person under its control to comply with, all applicable national, regional and international rules relating to ethical and responsible behaviors, including, but not limited to, those dealing with human rights, environmental protection, sustainable development, bribery and corruption.

14. DATA PRIVACY

14.1 Customer shall be solely responsible, where applicable, for providing any necessary notifications and/or obtaining any necessary consents required for the collection, use, disclosure and transfer of Personal Information. Each Party will use all commercially reasonable endeavours to ensure that the Personal Information is protected against unauthorized or accidental access, processing, erasure, loss or use and will promptly notify the other Party of any unauthorized or accidental access, processing, erasure, loss or use of the Personal Information. Customer shall ensure that China Unicom may transfer data acquired in connection with its provision of any Service, including Personal Information, to any of its Affiliates that have been delegated any of its obligations under the agreement.

15 EXPORT CONTROL

15.1 Customer shall comply with applicable national export control laws and regulations as well as United Nations’ Security Council resolutions and international regimes (for the purposes of this Export Control Clause, collectively “Export Control Laws”) to which all hardware, software and components therein supplied by China Unicom under the agreement (for the purposes of this Export Control Clause, collectively “ITEMS”) are subject.

15.2 Customer shall, at its own cost, obtain all required authorizations, permits, or licenses, and be registered with the relevant national agencies, to the extent required by such Export Control Laws. Customer shall maintain an effective internal compliance program to ensure compliance with applicable Export Control Laws.

15.3 All ITEMS are intended for civilian use only. Customer assures that it and its Affiliates will not directly or indirectly import, export, re-export, transfer, transmit, broker, or release the ITEMS to any military end-users or for any military end-use.

15.4 Customer also certifies that none of the ITEMS will be sold, re-sold, or otherwise transferred, or made available to any Party, by it and its Affiliates directly or indirectly, for end use prohibited or restricted by applicable Export Control Laws, such as use of nuclear, biological or chemical weapons or missiles or weapons of mass destruction or use of supporting terrorism.

15.5 When deemed necessary, China Unicom may audit the Customer’s practices in complying with this Export Control Clause. Customer agrees to provide transaction records, supporting documents and information regarding export control compliance, and agrees to cooperate with China Unicom for possible audits. Customer should also ensure recordkeeping requirements in line with applicable Export Control Laws to fulfil requirement of any audit by China Unicom.

16. FRAUD

16.1 It is in the Parties’ mutual interest to prevent any kind of fraud, abuse, misuse or damage of data that involves the Parties’ respective network or services. The Parties shall therefore inform each other on the occurrence of such event in due course, exchange all necessary and relevant data, including but not limited to customer information, and jointly discuss and work out measures either to prevent or eliminate such fraud, abuse, misuse or damage; PROVIDED THAT no Party shall transfer information to the other Party to the extent that a Party is prohibited from doing so by Applicable Law.

17. SECURITY REQUIREMENTS

17.1 Each Party shall ensure that the Services provided by it hereunder will comply with the security requirements as defined in this clause and Applicable Law.

17.2 Each Party shall ensure that any Confidential Information disclosed under the agreement will be treated by its staff, contractors and third parties acting on its behalf in accordance with the provisions of Clause 10 hereof.

17.3 Each Party will use all reasonable efforts to identify vulnerabilities, threats or risks linked to the Services provided by it hereunder at any time during the term of the agreement. Each Party shall advise the other Party in case of security related flaws.

17.4 The Parties shall advise each other immediately on becoming aware of any security breach, potential security breach or any suspected misuse that may affect the Services hereunder.

17.5 The Parties shall collaborate in order to eliminate any kind of security incident.

18. MISCELLANEOUS PROVISIONS

18.1 Force Majeure Event. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to Force Majeure Event provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

18.2 No Lease. This Agreement is a service agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Service, the Hosting Area or the premises, and Customer has no rights as a tenant or otherwise under any real property or landlord and tenant laws, regulations or ordinances.

18.3 Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party that should not be unreasonably withheld. Notwithstanding the aforesaid, either party may assign all or part of this Agreement to a legal successor or to its affiliated company by giving seven (7) days prior written notice to the other party. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

18.4 Government Regulations. Customer agrees and accepts that Customer is responsible for complying the law, regulations, levy and tax imposed by the government of HKSAR and by any other jurisdiction where Customer is registered. Any restrictions, levy and tax imposed by the government of the country where Customer is registered is solely and entirely Customer’s responsibility.

18.5 Survival Provision. The Parties’ rights and obligations which by their nature would extend beyond the termination, or expiration of this Agreement, shall survive such termination or expiration.

18.6 Notices. All notices, demands or other communications under this Agreement shall be given or made in writing, and shall deem to be received by a party if:

(a) delivered by courier or personally, the date of such delivery;

(b) sent by prepaid post, three (3) Business Days from the date of such posting;

(c) sent by e-mail or facsimile, the next Business Day of such transmission.

18.7 Headings. The headings of clauses are used for convenience only and shall not affect the meaning or construction of the contents of this Agreement.

18.8 Severability. In the event anyone or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by any competent courts, or regulatory bodies, such invalidity, illegality or un-enforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been set forth herein, and the Agreement shall be carried out as nearly as possible according to its original terms and intent.

18.9 Relationship of Parties. China Unicom and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between China Unicom and Customer. Neither China Unicom nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

18.10 Third Party Rights. A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Law of Hong Kong), to enforce any term of this Agreement.

18.11 Entire Agreement. This Agreement represents a complete and binding agreement and understanding between the Parties and supersedes any other agreement or understanding, written or oral. China Unicom reserves the right to change or modify these Terms and Conditions at any time, effective when posted on China Unicom’s website at < https://www.chinaunicomglobal.com/hk/terms-conditions.php >, with or without notice to Customer. Customer’s use of the Service(s) after changes to these Terms and Conditions are posted shall constitute acceptance of any changed or additional terms and conditions.

18.12 Time. Time shall be essence for each party to perform its duties and obligations under this Agreement.

18.13 Title of Service. Subject to the terms and conditions in this Agreement, Customer acknowledges that China Unicom retains all right, title and interest to and in the Services and China Unicom Equipment provided by China Unicom under this Agreement.

18.14 Governing Law. This Agreement and the relationships of the Parties in connection with the subject matter of this Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region and the Parties submit to the non-exclusive jurisdiction of the HKSAR Courts.

18.15 Conflict. In the event of any conflict between the terms in the Terms and Conditions and the Application, the terms in the Application shall prevail.

18.16 English Language. These Terms and Conditions are prepared in the English language which language will be controlling in all respects. No translation into any other language will be of any force or effect in the interpretation of these Terms and Conditions.

SCHEDULE 1 – ACCEPTABLE USE POLICY

1. User

If the Customer allows anyone to use the Service and/or any information or content services, the Customer shall ensure that such user shall comply with the applicable terms and conditions for the Service and/or information or content services.

2. Spam

The Customer agrees that China Unicom may, without giving notice to the Customer, filter and remove any suspected spam (including, any suspected spam email, virus-infected emails, SMS or materials) from any incoming traffic. However, China Unicom does not guarantee that all the spam will be filtered and removed by China Unicom and China Unicom shall not be responsible for any spam that has not been filtered and removed.

3. Computer Virus etc.

The Customer must not use the Service or allow the Service to be used to send or upload any software, content or other materials that:

(a) contain any computer or mobile viruses, worms, software bombs, Trojan horse or other harmful or malicious computer instructions, devices or techniques that can or were designed to threaten, infect, damage, disable or shut down any telecommunications device or any component of a computer system;

(b) contain any hidden files;

(c) replicate, transmit or activate itself without control of a person operating the computing equipment on which it resides;

(d) alter, damage or erase any data or computer programs without control of a person operating the computing equipment on which it resides;

(e) contain any illicit code; or

(f) the Customer or such user has no right to use.

4. No Display in Public

For the information or content services accessible through the Service, the Customer must not, and must not authorize or permit any one to, display or exhibit such information or content services in public.

5. Further Restrictions

5.1 The Customer must not use or allow the Service or the Equipment to be used:

(a) as a host, hub, link, server or gateway unless with China Unicom’s consent;

(b) on a sharing basis (i.e. using the Service to host server for sharing files with other Internet users) by whatever means;

(c) for aggregating, consolidating or refilling of any traffic, data, message or content; or

(d) in a manner which:

(i) would cause China Unicom to be in breach of any Applicable Law;

(ii) directly or indirectly involved in any Unauthorised Activity or in the use by a third party of the Service or the Customer Service for or in connection with any Unauthorised Activity;

(iii) violates the acceptable usages of any networks, equipment or services which are accessed through China Unicom’s network;

(iv) constitutes an infringement by the Customer or China Unicom of the rights of any person (including but not limited to Intellectual Property Rights and rights of confidentiality) or a violation or infringement of any duty or obligation in contract, tort or otherwise, to any third party;

(v) is fraudulent, deceptive, or misleading;

(vi) incites or will incite hatred or discrimination against any group of persons being a group defined by reference to colour, race, sex, origin, nationality or ethnic origins;

(vii) is excessively burdensome or otherwise results in network interruptions of any kind; or

(viii) involves illegal or unauthorised access, exploitation, interruptions or monitoring.

(e) for any improper purpose or for the purpose of sending any unsolicited advertising material or any material of an obscene or indecent nature;

(f) either by act or omission, to interfere with or impede or impair use of, or operation of, or do anything likely to interfere with or impede the use of, or operation of, the Service or the Network or any telecommunications service or network of a third party; or

(g) to take any unauthorised action in relation to the Network or the Service.

5.2 The Customer must not misuse or abuse the Service to the detriment of any other users of the Service.

SCHEDULE 2 – ACCESS POLICY

I. Access to the Site

The Site is a secure facility and any unauthorized personnel are prohibited to enter the Buildings. Customer and its representatives (“Customer’s Representative”) can enter and access the designated Site zone for equipment placement and other services subscribed with the submission of duly executed customer authorized access form (“Customer Authorized Access Form”). Customer’s Representatives are restricted to access other zones within the Buildings except with the prior written permission of China Unicom (with or without additional conditions in China Unicom’s discretion). All access to the Site must be accompanied by China Unicom Representative at all times.

It is Customer’s responsibility to ensure that all changes of the authorized Customer’s Representatives are notified to China Unicom in a timely manner with the submission of an updated Customer Authorized Access Form.

Customer must ensure that Customer’s Representatives and any other accompanying persons (including Customer’s Affiliates and the customers of the Customers) who are permitted by China Unicom to have access to the Hosting Area comply with this Schedule. The Customer is fully responsible for all acts, omissions or negligence of Customer’s Representatives and such other persons. The acts, omissions or negligence of Customer’s Representatives and any other accompanying persons shall be regarded as the acts, omission and negligence of Customer for all purposes.

China Unicom may from time to time amend this Schedule provided that:

(a) the amendment is reasonably necessary to:

(i) preserve the normal functioning, security or operation of the Site; or

(ii) comply with the Applicable Law, the terms of any Government approval and any other requirements of the government relating to the use of the Site; and

(iii) comply with the requirements under the land grant documents for the Buildings; and

(b) China Unicom uses its best endeavours to minimize interruption to access by Customer to the Hosting Area for the purposes of this Agreement.

Customer must comply with the requirements of all Government Agencies and insurers in relation to fire prevention, partitions, fixtures or fittings at the Site, and Customer shall pay China Unicom the cost and expense of any alterations to the sprinkler, security system, fire alarm and tire prevention installations which become necessary because of Customer’s or Customer’s Representatives’ non-compliance with these requirements.

II. Use of Facilities

A) Conduct at the Site

1. Customer and Customer’s Representatives shall adhere to and abide by all security and safety measures established by China Unicom. Customer and the Customer’s Representatives shall not be involved in any of the following activities:

(a) misuse or abuse any of China Unicom’s property or equipment or third party equipment;

(b) make any unauthorized use of or interfere with any property or equipment of any third party;

(c) harass any individual, including China Unicom’s personnel and representatives of other customers;

(d) engage in any activity that is in violation of the laws or aids or assists any criminal activity while in the Site or in connection with the Site;

(e) carry out any activities that will infringe the privacy of China Unicom’s personnel and any other customers of China Unicom;

(f) use of any photographic, video, film or such other device that produces, reproduces, retains or transmits images of the Site and/or the Hosting Area; and

(g) wander around inside the Buildings or the Site without accompanying by China Unicom’s representative.

2. Customer and Customer’s Representatives are required to observe the Access Policy while accessing Internet within the Site.

B) Prohibited Items

1. Customer and its Representatives shall keep each Hosting Area clean, free and clear of debris and refuse at all times.

2. Customer shall not, except as otherwise agreed to in writing by China Unicom:

(a) place any computer hardware or other equipment at the Site that has not been identified in writing to China Unicom;

(b) store any paper products or other materials which are not directly related to the Service at the Site (other than equipment manuals); and

(c) bring any prohibited materials (as set out below) into the Buildings and/or the Site, including, but not limited to, the following and any similar items:

● food and drink;

● tobacco products;

● explosives and weapons;

● hazardous materials;

● alcohol, illegal drugs and other intoxicants;

● electromagnetic devices which could unreasonably interfere with computer and telecommunications equipment;

● radioactive materials; and

● photographic or recording equipment of any kind (other than tape back-up equipment).

3. China Unicom shall not be responsible for any kind of property loss within the Buildings and Customer is advised not to bring any valuable belongings into the Buildings and/or the Site.

C) Electricity Supply

1. Each of the standard rack and/or cabinet is provisioned with dual electricity feeds according to the predefined power capacity. The maximum number of power sockets allowed in a standard rack or cabinet is specified in the Application. Upon Customer’s request, China Unicom may, at its discretion, provide racks and cabinets with higher electricity power rating configurations, or with more electricity power feeds and power sockets, subject to additional charges quoted. Customer shall only use those power sockets assigned by China Unicom. Customer shall not install its own bar, or power more electrical devices than the number of sockets as agreed by China Unicom.

2. The power configuration of each rack in the Hosting Area shall be pre-approved by China Unicom in writing and Customer shall comply with the Applicable Law, the applicable codes of practice and directives issued by the relevant Government Agency (if applicable). It is Customer’s sole responsibility to ensure that:

(a) it has ordered sufficient number of power sockets for connection to each device or equipment in the Hosting Area; and

(b) the electricity power agreed to be provided by China Unicom is sufficient to support the devices and equipment hosted in the Hosting Area for regular use.

3. China Unicom is entitled to independently inspect the power configuration of any of Customer’s racks in the Hosting Area at any time.

4. China Unicom is entitled to require Customer to (a) alter the electricity power configuration of the Customer Equipment or to disconnect electricity power supply to the Customer Equipment; or (b) disconnect the electricity supply from any device or equipment hosted in the Hosting Area immediately if:

(a) Customer Equipment is not installed in accordance with standard industrial practice and is consuming or has consumed excessive electricity in the Hosting Area; or

(b) the continuous operation of Customer Equipment in the Hosting Area may (i) pose a threat (including any risk of fire or other hazard) to the Hosting Area; (ii) unreasonably interfere with the operations of China Unicom’s business of providing Services at the Site.

D) Equipment and Connections

1. Customer shall use its best endeavours to facilitate China Unicom’s duty officer to provide China Unicom operations support at the Hosting Area. Each Customer Equipment must be clearly labeled with either Customer’s name or code name (provided in writing to China Unicom) and individual component identification. Each connection to and from Customer Equipment shall be clearly labeled with Customer’s name (or code name provided in writing to China Unicom) and the starting and ending point of the connection. Customer Equipment must be configured and run at all times in compliance with the manufacturer’s specifications, including power outlet, power consumption and clearance requirements.

2. Customer shall provide China Unicom with prior written notice any time it intends to connect or disconnect any Customer Equipment or other equipment.

3. Customer must not:

(a) install any equipment or place any equipment in the Hosting Area which, in the reasonable opinion of China Unicom, is or is likely to (i) overload the structure of any part of the Site; (ii) damage the equipment or facilities therein; or (iii) interfere the normal functioning or operation of any system or facilities servicing the Site;

(b) install or alter any item, fixture, partition or fitting in the Site (other than the Customer Equipment);

(c) install, alter, add to or remove any security locks, bolts or fittings in the Site other than an authorised security lock that secures any cage around the Hosting Area;

(d) install any equipment in any place other than the Hosting Area in accordance with the agreed planning information; and

(e) extend or modify any electrical wiring in the Buildings without China Unicom’s prior written consent. For the purposes of granting such consent, China Unicom is entitled to require that such extension or modification be provided by China Unicom at the Customer’s cost and expense.

E) Cabling

Without the prior written consent of China Unicom, Customer shall not extend any cable or place any device or equipment of whatever nature outside of an equipment rack or between equipment racks located in the Hosting Area.

III) Maintenance Service

1. China Unicom will conduct routine scheduled maintenance of the Hosting Area in accordance with China Unicom’s maintenance service schedule. If a mission critical maintenance situation arises, China Unicom may be required to perform emergency maintenance.

2. During the scheduled and emergency maintenance periods, Customer (a) acknowledges that Customer Equipment may be unable to transmit and receive data and Customer may be unable to access the Customer Equipment; (b) shall waive all claims it may have arising out of or relating to the events mentioned in paragraph III)2. (a); and (c) agrees to co-operate with China Unicom and provide all reasonable assistance to China Unicom during the scheduled and emergency maintenance periods.