GENERAL TERMS AND CONDITIONS FOR CMLINK eSIM SERVICE
These General Terms and Conditions for CMLink eSIM Service and any additional attachments, if any (the “Agreement”), which will be deemed an integral part hereof for all purposes, when attached to or referenced in the Order Form properly filled out and duly executed by BUYER in the Platform with no signature required (the "Order Form“), will constitute an agreement entered into between BUYER and CMI for the provision of CMLink eSIM Service (for purposes of this Agreement, the “CMLink eSIM Service” or the “Services”).
2.1 The Service shall be offered to BUYER by CMI so that Buyer can purchase the Services by submitting Order Form on the Platform operated by CMI.
2.2 The Parties agree that in the event of network fault or technical difficulties, which are extraordinarily difficult to avoid, exclude or resolve that may cause communications problems or inconvenience, this will not constitute a breach of this Agreement. CMI, however, will attempt its best endeavors to resolve the incident in a timely manner.
2.3 Buyer acknowledges that mobile signal, data throughput and network latency of the Services are not guarantee and they are subject to actual environment, geographical and other relevant factors.
2.4 CMI reserves the rights to make any changes to the Services during the term, while CMI will, through itself or the affiliates of China Mobile Communications Group Co., Ltd., notify Buyer by written notice. Any disagreement must be raised by written notification to CMI no later than fifteen (15) days after the issue date of the written notice, or Buyer will be treated as agreeing with all changes made. Once disagreement is raised, the Parties shall negotiate in good faith to reach mutual understanding and agreement.
2.5 If CMI arranges Third Party Service Provider(s) to provide services on behalf of Buyer in connection with the Services, Buyer is deemed to have agreed to and accepted all the applicable terms and conditions provided those terms and conditions are reasonably and ordinarily imposed by the Service Provider(s) and provided that the applicable charges are in accordance with the amount of charges specified in the Order Form. Buyer shall pay CMI for any such charges imposed by such Service Provider(s).
3.1 All prices of the Services are set forth on the Platform. All charges and billing rules are subject to the terms and conditions as stated in the Order Form and this Agreement.
3.2 General rules for the Services:
a) The price of the Services is confirmed at the time of submission of the Order Form, and the price may be updated from time to time. Once the price of the Services changes, all new orders will automatically use the new price. The price of the order created before the price change will not be affected.
3.3 All prices of Services displayed on distributor portal are exclusive of any and all applicable taxes including value added tax (if any), and regulatory surcharges (if any).
3.4 If Buyer is required by law to deduct or withhold any tax, duty or levy from any amounts payable under this Agreement, such amount shall be increased as necessary so that CMI receives an amount equal to the sum it would have received without any deduction or withholding. Buyer shall not be liable for any taxes on CMI’s income or profits.
3.5 Each Party shall bear its own bank charges imposed by the Party’s bank(s). The intermediate bank charges shall be borne by the account payee.
3.6 If there are any government actions, interference or regulations that generate adverse impacts on the fulfillment of this Agreement during the term, CMI reserves the rights to adjust the pricing mechanism of Services accordingly or modify the discount modes, whereas, Buyer can likewise apply for corresponding pricing adjustment to Services or discount modes. The Parties shall negotiate in good faith to reach mutual understanding and agreement.
4.1 All the Charges will be specified in the Order Form when BUYER submitting order on the distributor portal. BUYER should 100% prepay the order through online payment directly. If BUYER fails to complete the payment within the payment time limit specified by PLATFORM after submitting the Order Form, the PLATFORM shall be entitled to cancel the order.
5.1 Buyer shall pay all direct or indirect costs incurred to establish a network connection for use Platform and to meet Platform’s minimum security requirements.
6.1 Due to the nature of the Services, there will be no actual physical delivery of goods for the Services. BUYER can view the order records and the Services details on the Platform .
7.1 Order Form shall only be valid upon confirmation by Third Party Service Provider or Platform.
7.2 Not all Services purchased from the Platform are refundable, subject to the return options displayed on the Platform.
8.1 This Agreement can be terminated by either Party provided the terminating Party notifies the other party in writing at least thirty (30) days prior to the desired termination date.
8.2 For Services that are terminated prior to the end of the applicable initial contract term, BUYER must pay the following termination charges:
a) all unpaid and/or outstanding charges incurred up to and including the date of termination;
b) any initial charge or one-off charge waived by CMI;
c) any taxes payable by BUYER.
8.3 If any proceedings in bankruptcy, reorganization, insolvency, liquidation or receivership are commenced by or against either Party, the other Party may, upon twenty (24) hours written notice, terminate this Agreement with immediate effect.
9.1 Buyer shall contractually prevent (and enforce such contractual provisions) all users from using the Services:
a) for any improper, fraudulent or unlawful purpose;
b) for the transmission of material that contains software viruses or any other disabling or damaging programs;
c) in any way which impairs or damages the network or other relevant platform;
d) in any way which results in the copying, adaptation, reverse engineering, decompilation, disassemblement, customisation or modification in whole or in part of any software which may be contained in the Services;
e) in any way which would violate copyright, trademark, trade secret or other property right of any third-party;
f) in any way which involves the addition, removal or modification of identifying network header information;
g) in any way which results in spamming or the sending of bulk unsolicited emails or commercial messages.
10.1 The Receiving Party must keep the information marked or otherwise reasonably understood to be confidential or proprietary of Disclosing Party (“Information”) confidential. The Receiving Party shall:
a) use the Information solely for the purpose of pursing the cooperation;
b) not disclose, publish or disseminate any Information to any third party in any way or form without the prior written consent by the Disclosing Party;
c) treat any Information with the degree of care no less stringent with which it treats its own confidential information of like importance, and in any event taking reasonable precautions for its safe custody;
d) not copy, reproduce or otherwise transmit, in whole or in part, the Disclosing Party’s Information other than to the extent as may be reasonably necessary for the purpose of pursuing the cooperation, provided that the Receiving Party shall include the Disclosing Party’s proprietary and confidentiality notice on each such copy or reproduced material.
10.2 The obligations under this Section 10 shall not apply to any information which:
a) is in the public domain at the time of its disclosure under this Agreement;
b) comes into the public domain following disclosure under this Agreement otherwise than by an act or omission of the Receiving Party;
c) was in the lawful possession of the Receiving Party prior to and independently of the disclosure by the Disclosing Party under this Agreement free of any restriction as to its use or disclosure prior to it being so disclosed; or
d) was developed by or became available to the Receiving Party following disclosure under this Agreement from a source other than the Disclosing Party without incurring any confidentiality obligation. The Party seeking the benefit of the above exception shall bear the burden of proving its existence.
10.3 Notwithstanding the foregoing provisions in this Section 10, each Receiving Party may disclose the Information or the existence or content of this Agreement to its representatives, employees, advisors and its related party who need to know such information in order for the Receiving Party to pursue the cooperation and who are bound to confidentiality obligations either by an agreement or otherwise to the extent not less stringent than the obligations under this Agreement. Any unauthorized use or unauthorized disclosure of the Information or the existence or content of this Agreement by any of the Representatives and Related Party shall constitute a breach of this Agreement by the relevant Receiving Party.
10.4 Notwithstanding the foregoing provisions in this Section 10, the Receiving Party may without liability to the Disclosing Party disclose the Information or the content or existence of this Agreement as required by law, rules or regulations (including, but not limited to, rules or regulations of a stock exchange on which the securities of the Receiving Party or those of Related Party are listed or quoted), order of a relevant court of law or the direction of regulatory authority, provided that before such disclosure and to the extent that it is reasonably practical to do so, the Receiving Party shall first notify the other Parties thereof, give the Disclosing Party an opportunity to obtain a protective order, and restrict the disclosure to the extent it is required to do so.
11.1 Each Party, when it is the Data Controller (the Party that determines the means and purposes of the processing of Personal Data), shall comply with all the applicable requirements of the Data Protection Legislation including maintaining all necessary notifications.
11.2 When a Party is acting as a Data Processor for other Party, the Data Processor Party shall:
a) process the Personal Data only for the purpose of performing its obligations under this Agreement;
b) inform the other Party of any complaints about, or subject access requests for, the Personal Data processed as part of providing the customer services and provide any information the other Party requires to respond to that request or complaint;
c) take reasonable steps to ensure the reliability of personnel who have access to the Personal Data and ensure that such personnel are aware of the Parties’ obligations, the Data Protection Legislation and have received adequate training and/or instruction on the care and handling of Personal Data;
d) take all appropriate technical and organisational measures in accordance with the Data Protection Legislation and otherwise in accordance with good industry practice against unauthorised or unlawful processing of, and against accidental loss or destruction of, the Personal Data, and in order to maintain the integrity of the Personal Data, including by ensuring a level of security appropriate to: (a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (b) the nature of the Personal Data;
e) promptly notify the other Party about any legally binding request by any law enforcement authority or other governmental body regarding the Personal Data unless legally prohibited from doing so;
f) promptly notify the other Party about any accidental or unauthorised access to the Personal Data;
g) ensure that any subcontractor used by a Party who accesses or receives any Personal Data of an user outside the European Union is either safe harbor certified, accesses or receives such data in a country identified under the EU Data Protection Directive as meeting EU standards for data protection or is subject to the EU Data Protection Directive model clauses in its contract with such Party, and that such subcontractor complies with the terms of this Agreement.
h) comply with all the applicable requirements of the Data Protection Legislation including maintaining all necessary notifications.
i) shall not, and shall ensure that its sub-contractors do not, retain any Personal Data for longer than is necessary for the performance of the Services or as required by applicable law.
11.3 The Parties may authorise third parties or an affiliate or partner of the Party (a “sub-contractor”) to process the Personal Data of authorised users. The Parties shall each ensure that any permitted sub-contractor's contract contains terms in respect of Data Protection Laws which are substantially the same as those set out in this Agreement.
11.4 The Parties will each ensure that they or any of their respective sub-contractors will not, in respect of Personal Data originating from or held within the European Economic Area (“EEA”), transfer or process the Personal Data outside the EEA, without the prior written consent of the other Party. In respect of any other country from which Personal Data originates or is held, where the Data Protection Laws limit such Personal Data being processed in or transferred to a location outside that country, each Party will ensure that it or any sub-contractor will not transfer or process Personal Data outside that country, without the prior written consent of the other Party. Where consent to processing or transfer of Personal Data outside the EEA or the applicable country is given, each Party will comply with any additional requirements of the CUSTOMER associated with such processing (which may, for the avoidance of doubt, require the Parties to ensure such parties as reasonably specified by CUSTOMER, will enter into the appropriate standard contractual clauses adopted by the European Commission for the transfer of Personal Data outside the applicable jurisdiction).
11.5 Each Party shall maintain the data, records and documents given to it by the other Party and/or created by a Party on the other Party’s behalf (1) that must be maintained for legal, regulatory and other business purposes in connection with the operation of the transferring Party’s business activities (“Official Records”) or (2) in connection with providing the Customer Services (“Party Data”). For avoidance of doubt, such Official Records and Party Data shall, at all times, remain the property of and subject to the control of the Party who provided them or on whose behalf they were created, and the other Party must immediately notify such Party of any security breach involving such Official Records and/or Party Data. Each Party shall maintain the other Party’s Official Records and Party Data in a readily accessible format and notify the other Party of any security breach and this obligation shall continue following the cessation of activities associated with Official Records and Party Data. Upon request of a Party, the other Party shall certify that the Official Records and Party Data of the other Party have been destroyed pursuant to the applicable retention periods.
12.1 CMI, through itself or the affiliates of China Mobile Communications Group Co., Ltd., shall have the obligations to provide Services based on the Order Form and the Agreement entered into between the Parties. Buyer must strictly comply with relevant government regulations and will not itself utilize, and will by contract prohibit its end user customers from utilizing, the Distributor Service offered by CMI to carry out any illegal or criminal activities. Buyer will be fully responsible for the liabilities arising out of a breach by Buyer of its obligations under this Agreement.
12.2 Buyer hereby declares that Buyer will not make use of, and will by contract prohibit its end user customers from using, any IoT Services offered by CMI to generate, replicate, publish or disseminate any information related to the following fields:
a) Oppose the basic principles concluded by National Constitution;
b) Endanger national security, disclose state secrets, subvert state power, damage national unity;
c) Harm the national prosperity or benefits;
d) Incite racial hatred or racial discrimination, damage ethnic solidarity;
e) Undermine the state religion policies, promote cult religions and superstitions;
f) Disseminate rumors, disrupt social order or social stability;
g) Disseminate obscene, pornographic, gambling, violent, murdering or horrifying information or abet any criminal activities;
h) Insult or slander on others to harm their legitimate interests;
i) Include any information prohibited by regulatory and institutional measures.
12.3 Buyer shall not use and will by contract prohibit its end user customers from using the Services purchased to send spam, conduct network attacks or computing system attacks, spread computer viruses or damage Internet information security.
12.4 Buyer shall be responsible for any information security liabilities resulted by its utilization of the telecommunications resources or Services provided by CMI, to offer virtual hosting related Services to third parties.
12.5 Buyer shall endeavor to consolidate the network and information security measures of device or network and protect account information and password. In case of liabilities of information security resulted by embezzlement of account and password, Buyer shall be liable for such incidents.
12.6 Once Buyer violates any provisions of this Agreement or in process of handling the Buyer issue relevant to information security by CMI, CMI reserves the rights to temporarily suspend the telecommunications resources and Services and/or unilaterally terminate the Agreement.
Neither Party may publish or use any advertising, sales promotions, press releases or other publicity which use the other Party’s name, logo, trademarks or service marks without the prior written approval of the other Party, provided that CMI may list Buyer as a user of the Services in CMI’s advertising and sales promotion materials.
In no event shall either Party be liable for any loss of revenues, profits, contracts or business or failure to realise anticipated savings or indirect or consequential loss or damage suffered by the other Party, provided however, that the limitations of liability provided herein shall not in any way limit or exclude any liability of either Party to the other party for (a) violation of section 10 (Confidentiality), (b) loss or damage resulting from death or personal injury caused by the negligence, (c) fraud or deceit, or (d) any other matter for which liability may not lawfully be excluded.
Buyer acknowledges that CMI does not provide any SLA for the Services
In the event of Force Majeure including, but not limited to, earthquake, flood, natural disaster, war, riot, government actions, interference or regulations that may cause the inability to perform any obligations set out in this Agreement, the parties will be exempt from all liabilities and this will not constitute a breach of any provisions of this Agreement.
17.1 No Assignment: Neither Party shall assign, delegate or transfer, in whole or in part, any of its rights and/or obligations under this Agreement to any third party without the prior written consent of the other Party.
17.2 No Waiver: No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, and any single or partial exercise by either Party of any right, power or privilege under this Agreement shall not preclude further exercise of such right, power or privilege, nor preclude exercise of any other right, power or privilege available under this Agreement or under any applicable law.
17.3 Severability: If any of the provisions contained in this Agreement shall be declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
17.4 Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, discussions and understandings with respect to the subject matter hereof. This Agreement may not be amended, changed or modified unless agreed by the Parties in writing.
17.5 Compliance with Laws: Each Party agrees to comply with all applicable laws and regulations, including, but not limited to, laws and regulations relating to the export and/or re-export of technical data, documentation and/or products insofar as they relate to the information disclosed under this Agreement. This Agreement is not construed to permit any of the Parties to offer and provide its services in a foreign country without compliance with local applicable laws and regulations, especially those regarding the necessary licenses to operate and provide telecommunication services.
18.1 This Agreement shall be governed by and construed in accordance with the laws of Hong Kong without regard to the principles of its conflict of laws.
18.2 All disputes arising out of or in connection with this Agreement may be referred to and finally resolved by arbitration in accordance with the rules of the International Chamber of Commerce. The arbitration proceedings will be conducted in Hong Kong and the language of the arbitration proceedings will be in English. Each Party shall bear its own fees and costs of arbitration.
For the purpose and clarification of this Agreement, the following terms shall have the following meanings respectively:
“Data Controller” shall have the meaning given in the applicable Data Protection Legislation.
“Data Processor” shall have the meaning given in the applicable Data Protection Legislation.
“Data Protection Legislation” or “Data Protection Laws” means all regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice, and/or any similar or analogous law or regulation in the applicable jurisdiction.
“Disclosing Party” means the party disclosing confidential information to the other party, including any affiliate of such other party and “Receiving Party” means the party receiving confidential information from the other party, including any affiliate of such other party.
“Order Form” means the order submitting on the Platform distributor portal for the Services that, when executed by Buyer and CMI, together with these General Terms and Conditions comprises a binding agreement between the Parties in respect of the Services.
“Party” means CUSTOMER or CMI and “Parties” mean CUSTOMER and CMI. “Buyer” or “BUYER” means the party which completed registration and purchase Services on the Platform, can purchase Services on the distributor portal (https://esimdistributor.cmlink.com) “Platform” means CMLink eSIM Platform which is operated by CMI. Buyer can purchase Services, view order records and check details of purchased Services through different portal websites. Except where otherwise specified, Services purchased from the PLATFORM is not provided by CMI, and CMI is only responsible for billing and delivery of the goods and services.
“Third Party Service Provider” means the third party which provides the Services to BUYER.