Conditions Générales de Vente
This chapter defines the terms and conditions upon which Telecom Luxembourg S.A. agrees to perform the services and CLIENT to purchase the services.
In this Master Services Agreement headings and bold type are for convenience only and do not affect the interpretation of this Master Services Agreement and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice-versa;
(b) each of the Service Level Agreements will have effect as if set out in this Master Services Agreement.
1.1. DEFINITIONS AND INTERPRETATION
In this Agreement the following terms and phrases shall have the following meaning, unless the context otherwise requires:
“Affiliate” of a Party means in relation to a Party (i) any entity under the control of such Party; and (ii) any entity controlling such Party; and (iii) any other entity under the control of a controlling entity under paragraph (ii).
"Agreement" shall mean, as between the Telecom Luxembourg S.A. Signatory and Client Signatory, this Master Services Agreement, and, as between Telecom Luxembourg S.A. and Client for a Service, the relevant Service Level Agreement(s) incorporating the terms of this Master Services Agreement.
“Business Day” means Mondays through Fridays but does not include national, public, or bank holidays of the country or locality where the relevant action is to be taken. When the day on or by which anything is to be done is not a Business Day, that thing must be done on or by the next Business Day.
“Charges" means the fees payable for Services under this Master Services Agreement and as further defined in the Service Level Agreement.
“Client” shall mean, for a Service, jointly and severally, the Client Signatory that delivers a signed Service Level Agreement to Telecom Luxembourg S.A..
“Client Data” shall include, but not be limited to, data transmissions (including the
originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal and/or private information of the Client, its employees or authorised users of the Services, and other data provided to or obtained by Telecom Luxembourg S.A., Telecom Luxembourg S.A. Affiliates and their respective agents in connection with the provision of Services.
“Client Equipment” means equipment (including Software embedded in or run on such equipment), other than Telecom Luxembourg S.A. Equipment, used by CLIENT in connection with the Services.
“Confidential Information” shall mean all information (in whatever format) which: (i) relates to the Agreement; (ii) is designated as confidential by either Party; or (iii) relates to the business, affairs, networks, clients, products, developments, trade secrets, know-how and personnel of either Party (including, in the case of the Client, Client Data) and which may reasonably be regarded as the confidential information of the disclosing Party.
“Content” means information made available, displayed or transmitted in connection with a Service (including, without limitation, information made available by means of a HTML “hyperlink”, third party posting or similar means) including all trademarks, service marks and domain names contained in such information, as well as the contents of any bulletin boards or chat forums, and all upgrades, updates, modifications and other versions of any of the foregoing.
“Cover Page” means the first page of this document.
“Day” means any calendar day.
“Dispute” means any disagreement, conflict or claims arising out of or in connection with the Master Services Agreement or its validity.
“Emergency Works” mean works, the execution of which, at the time it is proposed to execute them, is required to put an end to, or prevent, the arising of circumstances then existing or imminent that are likely to cause: (i) danger to persons or property; (ii) the interruption of any service provided by the network or the network generated by a third party; (iii) substantial loss to Telecom Luxembourg S.A. or any third party; and such other works as in all the circumstances it is reasonable to execute with those works.
"Force Majeure Event" shall mean any cause beyond a Party’s reasonable control affecting the performance of its obligations, including, but not limited to, fire, flood, explosion, accident, war, acts of terrorism, strike, embargo, governmental requirement, civil or military authority, changes to laws or regulations, inability to secure materials or services, industrial disputes and acts or omissions of other providers of telecommunications services.
“Installation Charge” or “Start Up Charge” shall mean the one time charge for installation of a Service (including installation of any Service Equipment).
“Internet” shall mean the international interconnected network of networks using the TCP/IP protocol to exchange data communications.
“Internet Service” shall mean a service providing access to the Internet together with any related Service Equipment or support services, and as more particularly described in the relevant Service Level Agreement.
“IP Network” shall mean the points of presence, network hubs, and host computers owned, operated or used by Telecom Luxembourg S.A. or Telecom Luxembourg S.A. Affiliate in connection with the provision of an Internet Service.
“Telecom Luxembourg S.A.” means the Relevant Telecom Luxembourg S.A. Entity signing up to the Master Services Agreement.
“Telecom Luxembourg S.A. Equipment” means equipment (including any Software) owned or licensed by Telecom Luxembourg S.A. and placed on CLIENT premises by Telecom Luxembourg S.A. for provision of the Service.
“Telecom Luxembourg S.A. Leased Equipment” means equipment leased to Telecom Luxembourg S.A.. The conditions of such lease will be subject of a specific Service Level Agreement.
"Mark(s)" means a trademark, service mark, trade name, logo that serves to identify a Party, its products or services.
"Minimum Period of Service" means the minimum duration for each Service or each component of the Service, as defined in the relevant Service Level Agreement or the Annex and calculated from the Operational Service Date.
"Network” shall mean the Telecommunications Network and the IP Network.
“Preliminary Acceptance” means a notification that may be provided that, with respect to Telecom Luxembourg S.A. obligations hereunder, the Service is ready for use.
"Operational Service Date" means the date on which any Service or part of a Service is first made available to CLIENT by Telecom Luxembourg S.A., the date when CLIENT first starts to use such Service (or part of the Service).
“Order Form” means the form that specifies the information required for CLIENT to order Service(s) pursuant to this Master Services Agreement and Service Level Management.
“Order” means an Order Form, filled out with all necessary information, signed by a person authorised by CLIENT and accepted by Telecom Luxembourg S.A..
“Party” shall mean, in respect of a Service, each of Telecom Luxembourg S.A. and the Client, and “Parties” shall be construed accordingly.
“Regulated Client Data” is that Client Data whose use, processing or transfer is regulated by law or regulation as “personal data” where Telecom Luxembourg S.A., its Telecom Luxembourg S.A. Affiliates or their respective agents come into possession of such Client Data.
“Remote Service Desk” means … (to define)
“Service” means each service as described in the relevant Service Level Agreement and, as the case may be, further specified in the applicable Order Form(s).
“Service Activation Date” or “Acceptance Date” shall mean, in relation to a Service, the date a Client accepts or is deemed to accept a Service.
"Service Equipment” shall mean the hardware, software, systems, cabling, and facilities provided by Telecom Luxembourg S.A. at the Client Site in order to make available the Service to the Client. Service Equipment shall not include the Network or any hardware or software which is the subject of a separate supply contract between Telecom Luxembourg S.A. or Telecom Luxembourg S.A. Affiliate and the Client.
“Service Term”, in relation to a Service, shall mean the total period for which the Service is provided pursuant to a Service Level Agreement. The “Initial Service Term” shall mean the (initial) service term from the Service Activation Date or Acceptance Date as stated on the Service Level Agreement or, if not stated, one year from the Service Activation Date or Acceptance Date.
“Service Description” means the description of the Service as contained in the relevant Service Level Agreement.
“Service Level Agreement” means a schedule defined in this Master Services Agreement on the Effective Date (and those subsequently signed by the Parties stated to be part of this Master Services Agreement) which describes the Service to be provided to CLIENT, any commitments to purchase the Service and any specific rates, terms and conditions for the provision of that Service to CLIENT. Service Level Agreements may be added or revised from time to time by mutual agreement of the Parties and in accordance with the terms of this Master Services Agreement.
“Site” means the place at which Telecom Luxembourg S.A. agrees to provide Service.
“Software” has the meaning given to it in Intellectual Property clause.
“Territory” is any country where an Affiliate is located.
“Third party is every natural or legal person that is not party to the agreement, unless explicitly mentioned otherwise;
“Third Party Service Agreement” means an agreement between Telecom Luxembourg S.A. and a third party service provider entered into pursuant to this Master Services Agreement.
"Telecommunications Network” shall mean the telecommunication system(s) that are owned, operated or used by Telecom Luxembourg S.A..
“User” means anyone who is properly permitted by the client to use or access the Service purchased by the client.
1.2. ORDER OF PRECEDENCE
In the event of a conflict between the terms of the Master Services Agreement, the order of precedence shall be as follows ((a) having the highest precedence, (d) the lowest):
(a) Master Service Agreement
(b) Service Level Agreement
(c) Annexes
(d) Order forms
1.3. NOTICES
All notices given under this Master Services Agreement shall be in writing, in the English language, unless Parties agree otherwise or local law and regulations provide for differently, and shall be sent by prepaid post or delivered to Telecom Luxembourg S.A. or CLIENT principal place of business and addressee shown on the introduction of the present Agreement or to any other address or addressee either Party has given to the other for that purpose.
1.4. PROVISION OF THE SERVICE
1.4.1 Telecom Luxembourg S.A. agrees to provide CLIENT with the Services described in the applicable Service Level Agreement or in the specific Order form(s) from the Operational Service Date. Service performance will be on a proper and professional manner in accordance with the practices and standards of the industry. If CLIENT considers a breach of these warranty has occurred, and notify Telecom Luxembourg S.A. in writing, specifying the nature of this breach, then the provider is requested to correct any Service assigned to the utmost urgency, to restore the Service in accordance with these warranty.
1.4.2 Unless otherwise provided under this Master Services Agreement, Telecom Luxembourg S.A. does not provide any other warranties than these expressly mentioned under this Master Services Agreement or the relevant Service Level Agreement. CLIENT may order Services under this Master Services Agreement by an Order Form or Service Level Agreement signed by the Parties.
1.4.3 For the performance of the Services, Telecom Luxembourg S.A. will take care to provide the necessary resources and means to perform the Services. In that respect and according to the provision agreed in the Service Level Agreement, Telecom Luxembourg S.A. will use the necessary measures to provide CLIENT with the required information for answering the questions of CLIENT.
1.4.4 Telecom Luxembourg S.A. will repair faults in the Service in accordance with the applicable Service Level Agreement.
1.4.5 Subject to prior CLIENT agreement, Telecom Luxembourg S.A. may occasionally suspend the Service in an event of emergency and/or to safeguard the integrity and security of CLIENT or its network, IT infrastructure, personnel, Services or clients.
1.4.6 Telecom Luxembourg S.A. will possess all necessary registrations, certificates, permits, licences and authorisations to perform the Services in the Territory, notably relating to any relevant labour law constraints.
1.4.7 Under all circumstances during the term of the Master Services Agreement, Telecom Luxembourg S.A.’s personnel will remain under the immediate disciplinary authority of Telecom Luxembourg S.A.. Telecom Luxembourg S.A. will ensure, as employer, the administrative, accounting and human resources management of its employees participating in the performance of the obligations herein.
1.4.8 CLIENT will comply with Telecom Luxembourg S.A.’ requests which are necessary for reasons of health, security or safety of any Service provided to CLIENT.
1.4.9 CLIENT undertakes to:
• Fully cooperate in good faith with Telecom Luxembourg S.A. in order to facilitate the Service performance and provisioning, especially by providing the Sites clean and ready for the Service implementation;
• Use its best endeavours to understand Telecom Luxembourg S.A. advices or requests, if necessary by asking for clarification and provide Telecom Luxembourg S.A. with all information that may be useful or requested by Telecom Luxembourg S.A. and which may be required for the provision of the Service and co-operation between the Parties;
• Provide skills and Equipments, required for the correct provisioning of the Services, in a timely manner;
• Perform all acceptance and validation duties, in a timely manner;
• Provide relevant applicable security, health and safety regulations applicable on the CLIENT Sites.
1.5 THIRD PARTY SERVICE PROVIDERS
1.5.1 It may be necessary in certain jurisdictions, e.g. for regulatory, licensing, or tax reasons, for CLIENT to obtain the Service, or part of the Service, directly from a third party service provider pursuant to a separate agreement (“Third Party Service Agreement”). Should Telecom Luxembourg S.A. manage the Third Party Service Agreement on behalf of CLIENT, it will only do so as an agent of CLIENT whereby its responsibility will be limited to performance of the specific obligations as set forth in the applicable Service Level Agreement and it will not assume any liability under the Third Party Service Agreement.
1.5.2 In connection with the provision of service in whole or in part by a subcontractor, the provider shall enforce observance by such subcontractor of:
• The rules and regulations as required by the competent authorities, including without prejudice to the generally of the foregoing, regulations relating to data protection and protection of privacy;
• All applicable CLIENT rights;
• The applicable rules and regulations to PSF.
1.6 ASSIGNMENT
1.6.1 Either Party reserves the right to assign the Master Services Agreement at any time to any Affiliate which can sufficiently execute the obligations under the Master Services Agreement, subject to providing the other Party a prior written notice of such assignment. Any other assignment requires the prior written agreement of the other Party, which shall not be unreasonably withheld.
1.6.2 This Master Services Agreement will be binding on, and inure to the benefit of, the Parties and their successors and permitted assigns, except that the right to assign of Clause 1.6.1 will be deemed exhausted and that no consecutive assignment can occur.
1.6.3 Telecom Luxembourg S.A. may subcontract the performance of any of its obligations under this Master Services Agreement subject to the prior written agreement of CLIENT, which shall not be unreasonably withheld, but without relieving Telecom Luxembourg S.A. from any of its obligations to CLIENT. CLIENT agrees and understands that it may need to interact directly with a subcontractor for ordering, provisioning or maintaining the subcontracted Service.
1.7 USE OF THE SERVICE
1.7.1 CLIENT may use Service for its own purposes, provided that:
(a) CLIENT complies with terms of any legislation or any licence applicable to CLIENT in any country where Service is provided; and
(b) CLIENT or any User does not use the Service for illegal or unlawful purpose; and
(c) CLIENT shall remain responsible for the use of the Service by its Users, all charges incurred and compliance with all Terms and Conditions by it and its Users under this Master Services Agreement
1.7.2 So far as may permitted by relevant law or regulation, it is agreed that Telecom Luxembourg S.A. will have no liability and CLIENT will make no claim in respect of any matter arising from any use of the Service witch is contrary to the provisions of clause 1.7.1 and/or Telecom Luxembourg S.A. instructions, such instructions to be provided in writing under the notice provisions of clause 1.3.
1.7.3 The obligations and responsibilities of Telecom Luxembourg S.A. under this Master Services Agreement are solely to CLIENT and not to any third party, including any other User. To the extent permitted by law, and subject to the limitations of liability in clause 1.19, CLIENT will indemnify Telecom Luxembourg S.A. against any liabilities or costs arising from any and all claims by any third party in connection with the use of the Services.
1.8 EFFECTIVE DATE
This Master Services Agreement is effective when signed by authorised representatives of both Parties and will continue until terminated in accordance with the terms and conditions as set out under this Master Services Agreement.
1.9 DURATION
Unless otherwise provided, each Service or part of the Service shall have a Minimum Period of Service calculated from the Operational Service Date as notified by Telecom Luxembourg S.A.. Unless otherwise agreed, thereafter the Service shall continue in full force and effect in subsequent twelve (12) month periods unless or until terminated by either Party in accordance with Clause 1.23 of the General Terms and Conditions. Unless otherwise agreed by the Parties in writing, such renewal shall be subject to the conditions and the current Charges at the date of renewal.
This Master Services Agreement will be reviewed completely after a maximum period of 5 years.
1.10 CHARGES
1.10.1 The Charges for the Service are reflected in the applicable Order Form or Service Level Agreement and will be calculated in accordance with the Service Level Agreement. Charging will begin on the Operational Service Date. Charges for use of the Service will be calculated in accordance with details recorded by, or on behalf of, Telecom Luxembourg S.A.. All other expenses, other than mentioned in the Charges, made by Telecom Luxembourg S.A. in the frame of this Master Services Agreement (out of pocket expenses, parking expenses, taxi expenses, travel expenses, hotel expenses, etc.) will be charged separately on presentation of evidence to CLIENT.
1.10.2 The Charges will be invoiced according to the following invoicing schemes:
• For projects,
• One (1) total invoice when the contract amount does not exceed €1.500 (excl. VAT).
• When the contract amount exceeds €1.500 (excl. VAT), the way to invoice all services will be defined in the special conditions included in the respective Service Level Management agreement.
• For recurring Services, charges will be invoiced monthly with a detailed invoice.
1.10.3 Unless otherwise provided in a Service Level Agreement, the Charges shall be reviewed on the anniversary date of the Agreement’s inception according to the following formula which is based on the national consumption prices Statec indice ( www.statec.public.lu ):
P year (n+1) = P year (n) [0, 2 + 0, 8 * (S year (n)/S year (n-1)] where:
• year(n): is the reference year
• P: is the Charges applicable for the year (n) and the year (n+1)
• S: are the Statec index in the third quarter of the year and the year (n-1)
Additionally to what is mentioned above, but unless otherwise provided in the respective Service Level Agreement, Telecom Luxembourg S.A. reserves the right to increase the Charges.
Any Charges indexation and/or increase shall be notified at the latest ninety (90) days before its entry into force. In case of Charges’ increase, if CLIENT refuses such increase, Telecom Luxembourg S.A. is entitled to terminate the Service Level Agreement(s) within thirty (30) days of the Charges’ increase notification date. In case of termination CLIENT is not entitled to the reimbursement of the amounts already paid at that time.
1.10.4 CLIENT must in accordance with EC Directive 2000/35/EC pay all Charges for the Services within thirty (30) days of receipt of Telecom Luxembourg S.A.’ invoice, without any set-off, counterclaim or deduction.
In accordance to above mentioned EC Directive and Law, Telecom Luxembourg S.A. may, at its discretion, add interest charges, from the due date, to any past due amounts on a daily basis at the rate of 7% above the base lending rate of the European Central Bank (ECB).
1.10.5 Unless provided otherwise in a Service Level Agreement or Order Form, Telecom Luxembourg S.A. will invoice charges in Euros and CLIENT will pay all charges in Euros. The Charges for all Services are exclusive of any applicable taxes and surcharges (“Taxes”). CLIENT will pay all such Taxes including those paid or payable by Telecom Luxembourg S.A. (exclusive of taxes on the net income of Telecom Luxembourg S.A.).
1.10.6 In the event that payment of any amount of the Charges becomes subject to withholding tax, levy or similar payment obligation on sums due to Telecom Luxembourg S.A. under this Master Services Agreement such withholding tax amounts shall be borne and paid for by CLIENT in addition to the sums due to Telecom Luxembourg S.A.. CLIENT will provide Telecom Luxembourg S.A. free of charge with the appropriate certificate(s) from the relevant authorities confirming the amount of the withholding taxes, levies or similar payments borne and paid for by CLIENT.
1.10.7 When Telecom Luxembourg S.A. Provided Equipments or Services are priced in other currency than Euro, the amounts will be invoiced in Euro by Telecom Luxembourg S.A.. The conversion rate will be the money exchange rate prevailing on the previous day of the invoicing.
1.10.8 CLIENT will promptly, but in no event later than 30 days from receipt, notify Telecom Luxembourg S.A. in writing of any disputed invoice, together with all information relevant to the dispute, including the account numbers and trouble ticket numbers, if any, and an explanation of the amount disputed and the reasons. CLIENT must pay all undisputed amounts in accordance with Clause 1.10.4.
Disputes shall be resolved promptly and the resolved amount, if any, payable within thirty (30) days after resolution. Interest will accrue from the due date on subsequent payments of amounts withheld or credits on overpayments refunded.
1.10.9 Without prejudice to any other provision of this Master Services Agreement, if CLIENT fails to pay any undisputed sums due in accordance with the terms of this Master Services Agreement, Telecom Luxembourg S.A. may, at its option on 30 days written notice to CLIENT:
a) restrict, suspend or terminate provision of the relevant Services and Telecom Luxembourg S.A. shall be released from its obligation under this Master Services Agreement with respect to such Service until any balance due is paid or until such other material breach is remedied, and/or
b) as an exception to Clause 1.24.4 (a) and Clause 1.21, terminate this Master Services Agreement without liability to or right to compensation for CLIENT and without prejudice to Telecom Luxembourg S.A.’ rights to be paid sums due.
1.11 CONFIDENTIALITY
1.11.1 Telecom Luxembourg S.A. and CLIENT shall keep in confidence any Confidential Information obtained under this Master Services Agreement and shall not divulge the same to any person (other than their own or their Affiliate’s employees and professional advisors who need to know the information) without the written consent of the other party.
This Clause shall not apply to information which is:
(a) in the public domain other than in breach of this Master Services Agreement;
(b) in the possession of the receiving party before such divulgence has taken place;
1.11.2 and obtained from a third party who is free to divulge the same.
1.11.3 At the termination of this Agreement the receiving party, at the request of the disclosing party, return or destroy any confidential information belonging to the other party if allowed by applicable law and regulations. In case of conservation the receiving Party must, for the applicable legal period following the expiration or termination of this Master Services Agreement, keep such Confidential Information in confidence and use the Confidential Information only for the purposes of performing this Master Services Agreement.
1.11.4 If the receiving party receives a Court order, to disclose confidential information belonging to the disclosing party, then the receiving party will immediately inform the disclosing party and will require its assistance to minimize the scope of confidential information to be disclosed to the competent Court. By doing so the receiving party is entitled to disclose confidential information to the competent Court in accordance with the circumstances specified in the laws of Luxembourg.
1.12 CLIENT DATA AND PRIVACY
1.11.1 The CLIENT acknowledges that Telecom Luxembourg S.A. will, by virtue of the provision of Services, come into possession of CLIENT Data.
1.11.2 Telecom Luxembourg S.A. shall implement appropriate technical and organisational measures to protect CLIENT Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against other unlawful forms of processing. The CLIENT acknowledges that it has right to access Regulated CLIENT Data upon written notice and have any agreed errors in such Regulated CLIENT Data rectified.
1.11.3 The CLIENT acknowledges and agrees that Telecom Luxembourg S.A. may use, process and/or transfer CLIENT Data (including intra-group transfers and transfers to entities in countries that do not provide statutory protections for personal information):
• in connection with the provision of Services;
• to incorporate CLIENT Data into databases controlled by Telecom Luxembourg S.A. for the purpose of administration, provisioning, billing and reconciliation, verification of CLIENT identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and CLIENT analysis and reporting, market and CLIENT use analysis, and
• to communicate to the CLIENT by voice, letter, fax or email regarding products and services of Telecom Luxembourg S.A..
The CLIENT may withdraw consent for such use, processing or transfer of CLIENT Data as set out above, unless it is required to (i) provision, manage, account and bill for the Services; (ii) carry out fraud detection; or (iii) comply with any statutory obligation, regulatory requirement or court or other public authority order, by sending written notice to Telecom Luxembourg S.A. in accordance with the prescribed form, available from Telecom Luxembourg S.A. on request.
The CLIENT warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of CLIENT Data as described in this Clause 18. The CLIENT also warrants that it has complied with the information duties visà- vis the data subjects and, in general, with all the relevant obligations set forth in the applicable regulation on personal data protection that may apply as statutory duty or for the purposes of compliance of this Agreement.
1.13 PUBLICITY
1.13.1 Notwithstanding the provisions of clause 1.11.4 of this Master Services Agreement upon signature of this Master Services Agreement, Parties are entitled to announce publicly (including using CLIENT as a reference Client) the fact that they have entered into this Master Services Agreement for the provision of the respective Services. Any other publicity, announcements and/or press releases about or in relation to the Master Services Agreement will require the prior written consent of the other Party which shall not be unreasonably withheld.
1.13.2 Subject to the provisions of clause 1.13.1 neither Party may publish or use any advertising, sales promotions, press releases or other publicity which uses the Marks of the other Party or its Affiliates in connection with this Master Services Agreement or any Service provided under this Master Services Agreement, without the prior written approval of the other Party which shall not unreasonably be withheld.
1.14 TELECOM LUXEMBOURG S.A. EQUIPMENT AND PROVIDED EQUIPMENT
1.14.1 If Telecom Luxembourg S.A. needs to install Telecom Luxembourg S.A. Equipment or Telecom Luxembourg S.A. Provided Equipment at a Site to enable Telecom Luxembourg S.A. to provide the Service, CLIENT will prior to installation at its own cost:
(a) obtain all necessary consents, including consents for any necessary alterations to buildings;
(b) provide a suitable and safe working environment, including all necessary trucking, conduits and cable trays, in accordance with the relevant installation standards;
(c) provide any electricity and telecommunication connection points required by Telecom Luxembourg S.A.;
(d) provide any openings in buildings required to connect such Equipment to appropriate transport facilities.
The above actions must be completed in advance of any installation work by Telecom Luxembourg S.A..
1.14.2 CLIENT is responsible for the Telecom Luxembourg S.A. Equipment and must not move, add to, modify or in any way interfere with the Telecom Luxembourg S.A. Equipment, nor allow anyone else (other than someone authorised by Telecom Luxembourg S.A.) to do so. CLIENT will be liable to Telecom Luxembourg S.A. for any loss of or damage to the Telecom Luxembourg S.A. Equipment, except where the loss or damage is due to fair wear and tear or is caused by Telecom Luxembourg S.A. or anyone acting on Telecom Luxembourg S.A. behalf.
In case of seizure by a third party on the Telecom Luxembourg S.A. Equipment, CLIENT has to notify Telecom Luxembourg S.A. without any delay and has to take all necessary actions (judiciary or not) in order to prevent the seizure of the Telecom Luxembourg S.A. Equipment. If the Telecom Luxembourg S.A. Equipment is installed in premises not owned by CLIENT, at the installation date of the Telecom Luxembourg S.A. Equipment in these premises, CLIENT has to notify the lessor of the presence of Telecom Luxembourg S.A. Equipments in these locations, in writing by registered letter with a copy addressed to Telecom Luxembourg S.A.
1.14.3 Risk of all Telecom Luxembourg S.A. Provided Equipment shall pass to CLIENT on delivery to CLIENT by Telecom Luxembourg S.A. in accordance with the terms of this Agreement. Ownership of all Telecom Luxembourg S.A. Provided Equipment shall pass to CLIENT upon full payment of the price of these equipments.
1.15 ACCESS AND SITE REGULATIONS
1.15.1 CLIENT will, upon notification from Telecom Luxembourg S.A., allow Telecom Luxembourg S.A., its employees, agents and subcontractors access to CLIENT premises as may be necessary for the performance by Telecom Luxembourg S.A. under this Master Services Agreement, including the installation of Telecom Luxembourg S.A. Equipment or Telecom Luxembourg S.A. Provided Equipment, and, maintenance, recovery or removal of any Telecom Luxembourg S.A. Equipment. Telecom Luxembourg S.A. will use care in removal of Telecom Luxembourg S.A. Equipment and leave the premises in their original condition. Telecom Luxembourg S.A., its employee’s agents and subcontractors, shall observe CLIENT’ applicable site regulations previously advised in writing to Telecom Luxembourg S.A..
1.15.2 In the event activities or works are carried out at CLIENT premises, CLIENT will provide Telecom Luxembourg S.A. and Telecom Luxembourg S.A. personnel with an adequate, safe workplace which shall include Internet access, parking places, desk, phone, physical access to the servers, if any, and remote access to the servers, if any too, this list being not limitative.
1.16 CONNECTION OF CLIENT EQUIPMENT TO THE SERVICE
1.16.1 CLIENT must ensure that any Client Equipment connected to or used with the Service is connected and used in accordance with any instructions, safety and security procedures applicable to the use of that equipment.
1.16.2 CLIENT must ensure that any Client Equipment attached (directly or indirectly) to the Service by CLIENT is technically compatible with the Service and approved for that purpose under any applicable law or regulation. In the case of Telecom Luxembourg S.A. Provided Equipment sold for the purpose of CLIENT’ use thereof with the Service, CLIENT may rely upon Telecom Luxembourg S.A.’ representations as to such compatibility and compliance, as of the date of provision.
1.17 INTELLECTUAL PROPERTY
1.17.1 Ownership of and all intellectual property rights in any Telecom Luxembourg S.A. Equipment, software, operating manuals and associated documentation, made available as part of any Service or otherwise generated in connection with this Master Services Agreement, shall remain the property of Telecom Luxembourg S.A. or its licensors. Unless otherwise provided in equipment and software’s vendors terms and conditions, Telecom Luxembourg S.A. will grant CLIENT a personal, non-transferable and non-exclusive license to use and to permit its Users to use, in object code form, all software and associated written and electronic documentation and data furnished by Telecom Luxembourg S.A. pursuant to this Master Services Agreement, solely as necessary for the Service and solely in accordance with applicable written and electronic documentation.
1.17.2 Neither Party acquires any rights to the other Party’s patents, copyrights or other intellectual property under this Master Services Agreement except the limited rights necessary to perform its obligations under this Master Services Agreement.
1.17.3 Neither Party may use any Marks of the other Party.
1.17.4 Telecom Luxembourg S.A. warrants that it has all rights, authorisations and licenses required to provide the Services and Software licenses granted to CLIENT.
1.17.5 When this Master Services Agreement requires Telecom Luxembourg S.A. to furnish third-party software products for the performance of this Master Services Agreement, Telecom Luxembourg S.A. assigns to CLIENT all of its supplier’s warranties, remedies, and software licenses. CLIENT agrees to honour the terms of any licenses furnished to CLIENT, including, if required, signing and returning license agreements to Telecom Luxembourg S.A.’ supplier. Unless otherwise agreed in writing by Telecom Luxembourg S.A., CLIENT agrees to pursue any warranty claims directly with the manufacturers. Except for the manufacturer’s standard warranty, CLIENT is not relying on any other representation or warranty made by manufacturer to Telecom Luxembourg S.A.. The manufacturer’s warranty begins: (a) upon installation when Telecom Luxembourg S.A. has installation responsibility or (b) 10 days after Telecom Luxembourg S.A. or its supplier ship the products to CLIENT.
1.18 INTELLECTUAL PROPERTY INDEMNITIES
1.18.1 Telecom Luxembourg S.A. will defend, indemnify and hold CLIENT harmless against all claims and proceedings arising from alleged infringement of any third party’s intellectual property rights by reason of Telecom Luxembourg S.A.’ provision of the Service. As a condition of this indemnity CLIENT must:
(a) notify Telecom Luxembourg S.A. promptly in writing of any allegation of infringement;
(b) make no admission relating to the infringement;
(c) allow Telecom Luxembourg S.A. to conduct all negotiations and proceedings and give Telecom Luxembourg S.A. all assistance in doing so (Telecom Luxembourg S.A. will pay the expenses to CLIENT for such assistance); and
(d) allow Telecom Luxembourg S.A. to modify or replace the Service, or any item provided as part of the Service, so as to avoid the infringement, provided that the modification or replacement does not materially affect the performance of the Service.
1.18.2 If the Service becomes, or Telecom Luxembourg S.A. believes it is likely to become, the subject of an allegation or claim for infringement of any intellectual property rights as referred to in Clause 1.18.1, Telecom Luxembourg S.A., at its option and expense, may secure for CLIENT a right of continued use or modify or replace the Service, as set forth in Clause 1.18.1(d), so that it is no longer infringing. If neither of those remedies is available to Telecom Luxembourg S.A. on reasonable terms, Telecom Luxembourg S.A. may so notify CLIENT and terminate such infringing Service without penalty to either Party.
1.18.3 Telecom Luxembourg S.A. guarantees any work or written document done by its staff will not violate any copyright, patent or secret production of a third party. If a third party initiates proceedings against CLIENT for any violation of this nature, Telecom Luxembourg S.A. will settle on its own funds the compensation due to defend himself or CLIENT in the context of such proceedings. In any such circumstance, Telecom Luxembourg S.A. will pay all costs related to prosecution, damages, legal fees and expenses.
1.19 LIMITATION OF LIABILITY
1.19.1 Neither Party excludes or restricts in any way its liability for death or personal injury resulting from its own gross negligence or wilful intent or the gross negligence or wilful intent of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation.
1.19.2 Subject to Clause 1.19.1, neither Party shall be liable to the other or to any third party, (whether in contract, tort, under statute or otherwise (including in each case negligence)) for any of the following types of loss or damage arising under or in relation to this Master Services Agreement or any part of it (including without limitation any Service Level Agreement, Annex, Order Form, the Cover Page of Service Level Agreements):
(a) any loss of profits, business contracts, anticipated savings, goodwill, or revenue, and/or
(b) any indirect or consequential loss or damage whatsoever, even if that Party was advised in advance of the possibility of such loss or damage.
If Telecom Luxembourg S.A. is in breach of any obligations under this Master Services Agreement (or any part of it) to CLIENT or if any other Telecom Luxembourg S.A. liability is arising (including liability for negligence or breach of statutory duty, in contract, in tort or in equity) then, subject to Clauses 1.19.1 and 1.19.2, and any limitation of liability set out in the relevant Service Level Agreement, Telecom Luxembourg S.A. liability to CLIENT shall be limited to Euro 1.000.000, 00 for all events (connected or unconnected) in any period of 12 (twelve) consecutive calendar months.
1.19.3 Telecom Luxembourg S.A. shall implement the necessary measures to prevent any unauthorised access by third parties to any part of the Service provided to CLIENT. Telecom Luxembourg S.A. can be liable for any loss or damage sustained by CLIENT in the event of any unauthorised access in spite of Telecom Luxembourg S.A. necessary measures.
1.20 FORCE MAJEURE: MATTERS BEYOND THE CONTROL OF EITHER PARTY
Neither Party shall be liable for non- performance of its obligations caused by or resulting from Force Majeure which shall include but not be limited to events which are unpredictable, unforeseeable, irresistible and beyond the Parties’ control, such as any extreme severe weather, flood, landslide, earthquake, storm, lightning, fire, subsidence, epidemic, acts of terrorism, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labour unrest, civil disturbance, sabotage, expropriation by governmental authorities or other act or any event that is outside the control of the concerned Party (“Force Majeure Event”).
1.21 DISPUTE RESOLUTION
The Parties shall endeavour to amicably resolve any Dispute arising out of or in connection this Master Services Agreement.
1.21.1 Informal Dispute Resolution
Level I: Parties agree to aim to work out a settlement within (30) thirty days following the day of written notification of the Dispute. As soon as it becomes apparent to either Party that an agreement cannot be reached, latest at the end of the 30 days period, the Parties shall immediately sign a document marked “without prejudice”, containing information on what has been agreed and what remains in dispute between them on the date at which the negotiations failed, but each Party can initiate Level II proceedings whether or not such document was signed.
Level II: No later than two weeks after Level II proceedings have been initiated, representatives of both Parties shall meet in person. In the event Parties do not meet or if during two weeks after such meeting and latest four weeks after Level II proceedings have been initiated, an agreement has not been reached; the Dispute shall be submitted to the Courts under clause 1.21.2 at the election of either Party.
1.21.2 Formal Dispute Resolution
Failing such amicable settlement, any controversy, claim or dispute arising under or relating to this Master Services Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall be submitted to the exclusive jurisdiction of the Courts of Luxembourg.
1.21.3 Exception to Dispute Resolution Procedure
Late payment of invoices
In case of late payment of invoices, which are not properly disputed in accordance with Clause 1.10.6 Telecom Luxembourg S.A. reserves the right to pursue before the courts of Luxembourg any remedy it may have by law without reference to the Informal or Formal Dispute Resolution procedures.
Summary Process and Ancillary Relief:
Despite the above, if Party believes the Dispute or an issue in dispute is capable of being resolved by summary process and/or one of the Parties requires ancillary relief by a court of competent jurisdiction, then either of the Parties may proceed to issue such proceedings without reference to the Informal or Formal Dispute Resolution procedures.
1.22 SERVICE SUSPENSION
1.22.1 Telecom Luxembourg S.A. may, at its sole discretion and without prejudice to any right which it might have to terminate a Service and/or this Agreement, elect to immediately suspend the provision of a Service (or part thereof) if:
Telecom Luxembourg S.A. has reasonable grounds to consider it is entitled to terminate the Service and/or this Agreement;
Telecom Luxembourg S.A. is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority;
Telecom Luxembourg S.A. needs to carry out Emergency Works to the Network or Service Equipment;
Telecom Luxembourg S.A. has reasonable grounds to consider that the Service is being used fraudulently or illegally;
Telecom Luxembourg S.A. has reasonable grounds to consider that the Client will not or is unable to make any payment which is due or is to fall due to Telecom Luxembourg S.A. hereunder; or
Telecom Luxembourg S.A. has reasonable grounds to consider that the Client is or has been or connected with criminal activity or other activity, which is or may be detrimental to Telecom Luxembourg S.A..
If Telecom Luxembourg S.A. exercises its right to suspend the Service (or part thereof) it shall, whenever reasonably practicable, give prior notice of such suspension to the Client, such notice to state the grounds of such suspension and its expected duration. Telecom Luxembourg S.A. shall in such circumstances use all reasonable endeavours to resume the Service as soon as is practicable.
If the Service (or part thereof) is suspended as a consequence of the breach, fault, act or omission of the Client, the Client shall pay to Telecom Luxembourg S.A. all reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Service.
1.23 TERMINATION OF SERVICES AND MASTER SERVICES AGREEMENT
1.23.1 Termination of the Master Service Agreement implies termination of all the Services provided under this Master Service Agreement.
1.23.2 Either party may terminate any individual Service provided under this Master Service Agreement upon ninety (90) days written notice to the other subject to:
(a) payment by CLIENT to Telecom Luxembourg S.A. of any outstanding Charges, including connection and/or disconnection Charges, for the Service(s) so terminated; and
(b) payment of the applicable termination Charges, if any,
(c) and only if specified in the Service Level Agreement(s) for such Service(s), the Annex or any applicable Order Form.
1.23.3 Termination of one Service will not affect the Parties’ rights and obligations with regard to other Services ordered under this Master Services Agreement.
1.23.4 Either party may immediately by notice terminate a Service and/ or the Master Services Agreement and all its Services under it if one of the following events occurs:
(a) the other Party commits a material breach or has failed to perform any obligation under this Master Services Agreement and, to the extent that performance is not permanently or temporarily impossible due to Force Majeure, no performance has taken place within thirty (30) calendar days after the terminating Party has given its notice of default, or
(b) if any matter beyond the other party's control prevents the performance of the whole or a substantial part of the other party's obligations in relation to that Service for a continuous period of 3 months after the date on which it should have been performed; or
(c) any governmental or regulatory authority with competence and/or jurisdiction over the Parties decide that the provision of the relevant Service under this Master Services Agreement is contrary to existing laws, rules or regulations or any decision, law or other official governmental order makes the provision of the Services illegitimate. In such case no damages shall be due; or
(d) any of the authorisations or regulatory formalities required was or is not obtained, withdrawn or is no longer valid, for whatever reason; except that any authorisation or regulatory formalities that are not obtained, withdrawn or no longer valid due to the negligence or wilful misconduct of a Party, or due to a Party breaching the terms of said authorisations or regulatory formalities shall be considered a material breach of this Master Services Agreement and the Party causing such breach shall not be entitled to terminate this Master Services Agreement pursuant to this clause 19, or
(e) if the other party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if any of its assets are the subject of any form of seizure, or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver or administrator is appointed over its assets (or the equivalent of any such event in the jurisdiction of such other party). In any such event, such party shall immediately notify the other party in writing of any situation which could conduct to one of the above-mentioned circumstances.
Upon expiry or termination of this Master Services Agreement (or any Service provided under it):
a) the rights of the parties accrued up to the date of such expiry or termination shall remain unaffected; and
1.23.5 CLIENT shall co-operate fully with Telecom Luxembourg S.A. to recover any Telecom Luxembourg S.A. Equipment.
1.23.6 If the continuity or the quality of the service provision is strongly affected, CLIENT must be able to transfer the outsourced activities to a different provider or to perform those activities itself. In that case, CLIENT may interrupt the contract at its convenience by notifying Telecom Luxembourg S.A. in writing ninety (90) days in advance.
1.23.7 If during an internal or external audit, serious irregularities such as fraud are proven and documented, the termination of the contract will be immediate.
1.24 PRUDENTIAL REGULATION AUTHORITY’S PROVISION
1.24.1 Regarding Auditing Rights: Parties agree that CLIENT’ audit service may carry out an audit of the internal control, the security and the continuity of all CLIENT’ activities, including the ones that were outsourced, at its own costs and after proper notification. This audit - if related to the outsourced activities of CLIENT - cannot be limited in time or in scope to the extent required by the CSSF. Subject to these principles, CLIENT’ audit service will have the end-responsibility to decide whether information should be in the audit scope or not. CLIENT’ audit service will be bound by the necessary Non-Disclosure and confidentiality obligations of which Telecom Luxembourg S.A. will provide a draft version and that will cover both parties’ interests.
1.24.2 Regarding statutory auditing and prudential supervision: The CSSF and the CSSF approved auditors will, with a view to exercising their prudential control, have the unlimited access to the outsourced activities and have the possibility to conduct their controls, including at Supplier’s premises. Telecom Luxembourg S.A. will provide support and assistance during the audit. If the audit report shows some non-compliance regarding the CSSF principles of the obligations of Telecom Luxembourg S.A. as stated in this Agreement, Telecom Luxembourg S.A. will carry out the necessary corrective measure as soon as possible as set out by CLIENT audit services.
1.25 MISCELLANEOUS PROVISIONS
1.25.1 Entire Agreement This Master Services Agreement and its annexes supersede all prior oral or written understanding between the Parties and constitute the entire agreement with respect to the subject matter. Such terms and conditions shall not be modified or amended except in writing and signed by authorised representatives of all Parties.
1.25.2 Inducement The Parties acknowledge and agree that they have not been induced to enter into this Master Services Agreement by any representation, warranty or other assurance not expressly incorporated into this Master Services Agreement.
1.25.3 No Waiver Except as otherwise specifically provided in this Master Services Agreement, no failure to exercise, or delay in exercising, any right, power or privilege set forth in this Master Services Agreement will operate as a waiver of any right, power or privilege.
1.25.4 Severance If any provision of the Master Services Agreement is held to be invalid or unenforceable, it will be severed from the Master Services Agreement, the remaining provisions will remain in full force and effect and the Parties will promptly negotiate a replacement.
1.25.5 Survival of Obligations The Parties’ rights and obligations, which, by their nature would continue beyond the termination, cancellation or expiration of this Master Services Agreement shall survive termination, cancellation or expiration hereof.
1.25.6 Non-solicitation During the period covered by this Agreement and for a 12-month period after the expiry thereof, in advance or otherwise, the two parties shall agree not to recruit members of the other party’s staff that have been materially involved in the provision of the Service, even as self-employed workers as far as these members were implicated in the execution of this Agreement. If nevertheless a Party wishes to hire such member, it will inform the other Party of this intention and both Parties will see if they can agree on the conditions where under such engagement could be possible.
1.25.7 Regulatory Compliance Both parties agree to comply with any supplementary conditions to this Master Services Agreement that may be required by the laws and regulations of any country where Service is provided.
1.25.8 Capacity Each party warrants that it has the necessary rights, licences and permissions to enter into and perform its obligations under the terms of this Master Services Agreement.
1.25.9 Language This Master Services Agreement’s authentic language is English. In case of conflict between this Master Services Agreement and any translation, the English version will take precedence.
1.25.10 Competence The Provider will ensure that the staff working on the systems or equipment of CLIENT has the adequate competences to ensure the safety of people, systems and equipment of CLIENT.
1.25.11 Transfer of the agreement: No party can transfer the agreement without the prior written consent of the other party. Where consent is given by the other party, the terms of the agreement will apply for the successor of each respective party.
1.26 CHANGES TO THIS MASTER SERVICES AGREEMENT
1.26.1 This Master Services Agreement, the Annex, any Service Level Agreement or any Order will not be amended, modified or supplemented except by a document in writing signed by authorised representatives for both Parties.
1.26.2 CLIENT accepts expressly that Telecom Luxembourg S.A. can constantly adapt the characteristics and technical specifications of its Services and the Telecom Luxembourg S.A. Equipments to the technological developments and can also extend or adapt its Services and the Telecom Luxembourg S.A. Equipments to the state of technology, unless it has a negative impact on the Services rendered to CLIENT, where CLIENT prior consent will be required.
1.27 GOVERNING LAW AND JURISDICTION
This Master Services Agreement is governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg and the Courts of Luxembourg will have exclusive jurisdiction.
