1.
Glossary
|
“Agreement” |
these terms and
conditions and the Application. |
|
“Application” |
the application
submitted by you to NF. |
|
“Associated Account Holder” |
such other
persons as specified by you on your Application issued with independent login
IDs and passwords to access Netfront Services. |
|
“Charges” |
the charges for Netfront Services published in NF’s periodically updated
list of charges including but not limited to any charges referenced to as
connection time charges, traffic volume charges, subscriptions or monthly
charges, usage charges, or PNETS charges or license fees payable to the
government or any other entity, or any administration fees and any incurred
fees specified in this Agreement. |
|
“Content” |
includes any content,
Software, data, information, diagram, symbol or other material in whatever
languages that can be accessed by or through using Netfront
Services including but not limited to all textual, audio, video, still and
moving images, graphical, musical, or other content, or information, or goods
or services (and includes the Subscriber’s Content). |
|
“Equipment” |
any equipment
including hardware or software NF may use to provide the Services including
any equipment provided by NF installed or placed at your premises (excluding
any equipment owned by you). |
|
“NF” |
means 2012 Limited
or companies offering services under the netfront.net, hosting.netfront.net
domain names. |
|
“Netfront Internet Services”, “Netfront Services” and “Services” |
means NF’s services,
including but not limited to, access to the Internet, provision of Software,
consultation services, and other Internet, Inter-network or network related
technological services offered by NF to you under the name “Netfront” from time to time. |
|
“Email address” |
means each
Internet email address allocated to you by NF from time to time |
|
“License” |
NF’s
licenses to provide the Services. |
|
“Software” |
means any
software supplied by NF in object code form to you from time to time under
the terms of this Agreement. |
|
“Subscriber”, “you” and
“your” |
the Subscriber specified
in the Application who has requested the Services. |
|
“Subscriber’s Assets” |
any equipment,
software, assets, installations and fixtures owned by or installed by the
Subscriber at any premises or facilities provided by NF. |
|
“Subscriber’s
Content” |
any Content hosted by NF for
and on behalf of you or any Associated Account Holder (or uploaded by you or
any Associated Account Holder to the Netfront
Services server) and which may be accessible by third parties via Netfront Services. |
2.
Agreement
2.1
This Agreement between NF and you is effective upon the acceptance by NF of
your Application (either by the commencement of provision of Netfront Services to the Subscriber or by other means as
determined by NF and notified to you from time to time). This Agreement shall
continue in force until terminated in accordance with the terms and conditions
of the Agreement.
2.2
This Agreement continues to be valid if it is transferred by 2012 Limited to,
including but not limited to, its siblings, partners, parent companies and
affiliate companies, in which case the company to which this agreement is
transferred automatically replaces 2012 Limited as the contracting entity for
this agreement.
3.
Provision of Netfront Services & NF’s
Responsibilities
3.1 NF shall use
reasonable efforts to make Netfront Services
available to you during the term of this Agreement. NF may suspend Netfront Services in whole or in part or limit your access
to Netfront Services at any time without notice but
NF shall use reasonable efforts to keep such suspension or limitation to a
minimum. You shall remain liable for all Charges during the period of
suspension or limitation unless NF decides otherwise.
3.2 NF grants you a
non-transferable license to use the Software solely to access Netfront Services on your computer in strict accordance
with the terms and conditions of this Agreement and any software license that
accompanies the Software.
3.3 NF may discontinue Netfront Services in whole or in part, at any time without
notice if you do not comply with any of the terms of this Agreement, including
but not limited to the non-payment of any sums due by you to NF or breach by
you of any license to use the Software. You shall remain liable for all Charges
during the period of such disconnection. NF reserves the right to charge for
reconnection and require revised terms and conditions including terms of
payment. Should Netfront Services be disconnected or
this Agreement be terminated, you have no right to (and shall not) access the
Content and NF shall be under no obligation to restore or make any Content or
any copies of it available to you in any form whatsoever.
3.4 NF reserves the
right, for technical or operational reasons or in its reasonable discretion,
to: (a) prevent you from accessing any Content; and (b) withdraw, expand,
reduce, and/or modify at any time any or all Netfront
Services offered to you from time to time.
3.5 Subject to the terms
and conditions of this Agreement, NF shall allow you and any Associated Account
Holder access to Netfront Services by way of at least
one of the following methods: caller line identification (“CLI”),
login ID and/or password or any other access method Authorized by NF in writing
from time to time (“Authorized Access Method”).
4.
Your Responsibilities
4.1 You agree that you
shall:
4.1.1 Be responsible for any use of Netfront Services by you, any Associated Account Holder,
and any person accessing Netfront Services by way of
any Authorized Access Method (including but not limited to via your account’s
CLI, or any login ID or password given to you or any Associated Account Holder).
4.1.2 Ensure that each Associated
Account Holder complies with these terms and conditions.
4.1.3 Not use, or allow others to
use, Netfront Services for any purpose NF considers
improper, immoral, defamatory, or otherwise unlawful or for any unsolicited
advertising or promotion.
4.1.4 Comply with Hong Kong law or
other applicable law relating to Netfront Services.
4.1.5 Not, nor allow others to, act in
such a way that may jeopardize or impair the provision of Netfront
Services by NF in Hong Kong or any other parts of the world.
4.1.6 Not disclose to any
unauthorized person any Authorized Access Method (including but not limited to
any login ID or password issued by NF to you for use in conjunction with Netfront Services). If you become aware of any unauthorized
access to Netfront Services by any person who has
used any Authorized Access Method (including but not limited to your account’s
CLI or any login ID or password given to you or any Associated Account Holder)
without your permission, or if you believe that your password (or any
Associated Account Holder’s password) has been lost or stolen (or
otherwise obtained by a third party without your permission), you shall
immediately notify NF. NF shall not be liable for any loss or damage you
sustain by reason of any such access to Netfront
Services or any such use of your any Associated Account Holder’s login ID
or password.
4.1.7 You shall be responsible for
all Charges incurred by your account (or any Associated Account Holder’s
account) including but not limited to any Netfront
Services accessed through any Authorized Access Method (including but not
limited to your account’s CLI or your or any Associated Account Holder’s
login ID or password). Any act or omission of any person accessing Netfront Services using any Authorized Access Method
(including but not limited to your account’s CLI or your or any
Associated Account Holder’s login ID or password) which would constitute
a breach of this Agreement if done or omitted to be done by you, shall be
deemed to be a breach of this Agreement by you for all purposes under this
Agreement.
4.1.8 Not use, nor allow others to
use, Netfront Services in any way which may breach
any confidence, copyright or other intellectual property or similar rights of
NF or any third party, nor re-distribute or disseminate any Content (the
Subscriber’s Content excepted) or use any Content (the Subscriber’s
Content excepted) other than for personal use, except to the extent otherwise
expressly Authorized.
4.1.9 Abide by any rules issued by
NF from time to time relating to the use of Netfront
Services and shall also abide by generally accepted rules of conduct relating
to the proper use of the Internet. If, in NF’s sole discretion, you have
violated any of these rules, NF may suspend or limit your access to all or part
of Netfront Services without prior notice and/ or
terminate this Agreement immediately.
4.1.10 Indemnify and keep NF indemnified against
any action, liability, cost, claim, loss, damage, proceeding, expense
(including but not limited to legal costs on solicitor and own client basis)
suffered or incurred by NF arising from or which is directly or indirectly
related to:
4.1.10.1 you, any Associated Account
Holder’s, or any other person’s use of Netfront
Services where any Authorized Access Method (including but not limited to your
account’s CLI or your or any Associated Account Holder’s login ID
or password) has been used (whether or not you or any Associated Account Holder
as the case may be has Authorized such use), including but not limited to
claims arising from or for any act alleged to be illegal, defamation,
intellectual property right infringement, damage to computer database, loss of
data, distribution of obscene or offensive material; or
4.1.10.2 any breach or non-observance of
any provision contained in this Agreement by you, any Associated Account Holder
or any other person.
4.1.11 Not, nor allow others to, copy,
sub-license, distribute, sell, transfer, exploit, alter, adjust, de-compile,
disassemble, modify, tamper with, misuse, reverse engineer or repair the
Software and/or NF’s facilities, programming or otherwise, or attempt to
do such thing.
4.1.12 Not hack into, use or access (or attempt
to hack into, use or access) any part of Netfront
Services, any Content, or any area on the Netfront
Services server for which NF has not authorized access to you.
4.2 You acknowledge and
agree that:
4.2.1 To the extent permitted by
law, you shall not take any step, action or proceedings whether legal or
otherwise and shall not make or threaten to make any claim or demand against NF
or its agents, contractors or affiliated companies in relation to any Content
accessed by or through using Netfront Services
(including but not limited to claims for defamation and intellectual property
right infringement).
4.2.2 You have supplied your correct
and complete information (including but not limited to name, address, telephone
number, identify card number and/or business registration certificate) to NF
and shall notify of any change or alteration to that information in writing as
soon as practicable.
4.2.3 The Email addresses provided
by NF to you or any Associated Account Holder are solely for NF’s use in
providing the Services. You acknowledge that neither you nor any Associated
Account Holder shall acquire any right whatsoever in Email addresses.
4.3 You agree to grant
to NF (at no charge to NF) an irrevocable license in perpetuity in respect to
any Subscriber’s Content to copy, distribute, publish, and transmit such
Content as may be required for the operation of Netfront
Services.
4.4 You shall be
responsible for obtaining, providing and paying for all suitable
telecommunications equipment, telephone access lines, computer equipment
(including but not limited to any modem) and software (excluding the Software)
or other access devices, necessary to connect to Netfront
Services (except where NF has agreed to provision such equipment, lines,
software or access devices itself or through a third party which are not owned
or to be owned by you).
5.
Fees and charges.
5.1 NF shall invoice
you by e-mail or by post (as determined by NF) with all Charges incurred by
you, any Associated Account Holder or other person accessing the Services via
any Authorized Access Method (including but not limited to your account’s
CLI or your or any Associated Account Holder’s login ID or password)
during the period specified in the invoice. If you request NF to send you a
hard copy of the invoice or an itemized invoice (whether by post or by e-mail),
NF may charge you for any such invoice as determined by NF from time to time.
5.2 You shall pay
the full amount of such invoice (including but not limited to all applicable
taxes, tariffs, duties or impositions of a similar nature imposed by any
government or other authority) such payment to be made by the due date for
payment as specified in the invoice, without set off or deduction.
5.3 Payment is due on the date you received NF’s invoice
unless otherwise specified on the invoice. If payment is not made by the due
date, NF may immediately charge additional 5% of the total invoice amount on a
one-off basis to compensate for credit risk exposure, plus 1% of the total
outstanding amount as interest on a monthly and ongoing basis until full
payment is received by NF. You will
also be liable for any other additional costs, which is normally larger than
30% of the total outstanding amount, incurred in the event that NF needs to
recruit external credit management agencies or to commence legal procedures for
collection of any outstanding amount due to NF by you.
5.4 Ordinarily NF
will invoice you: (a) monthly in advance for subscription to (and/or monthly
charges for) Netfront Services; and (b) monthly in
arrears for usage charges; but NF may amend the invoicing period and submit
interim invoices to you. You shall be liable for such subscription or monthly
charges for Netfront Services whether used by you or
not. Pre-paid Charges are non-refundable unless NF decides otherwise or unless
fraud were determined and detected by bank or relevant law enforcement
authorities.
5.5 If any
Charges stated in any invoice are not queried within 15 days of the date of the
invoice then such Charges shall be deemed accepted by you.
5.6 NF may vary
the Charges and introduce new Charges from time to time in accordance with its
License, and may post such amendments on the Netfront
Services website, such amendments to take effect immediately upon compliance
with such License or at such later date as specified in any such amendment.
5.7 NF may demand a deposit from you
to secure your payment of any sums due to NF and may at any time vary such
deposit’s amount at NF’s discretion. NF may apply such deposit to
reduce or pay any sums due by you to NF on whatsoever account at any time. No
interest shall accrue on any deposit held by NF. Any deposit remaining
following this Agreement’s termination shall be returned to you after
deducting any such sums due to NF when the balance is claimed by you in writing
following termination of this Agreement.
5.8 NF may apply a
credit limit for Charges incurred by you and may suspend your access to Netfront Services, in whole or in part, if such limit is
exceeded.
5.9 NF may transfer or
apply any credit balance in your favor to settle any amount owed by you to NF
or to any company within the Netfront Group of
companies (“Netfront Companies”) whether
under this Agreement or any other arrangement between you and NF or any Netfront Companies. (You hereby authorize NF to make
payment on your behalf out of such credit balance (if any) to set off any
amount owed by you to any such Netfront Companies
from time to time). You agree that any credit or payment information held by NF
and any Netfront Companies about you is held for the
same purpose.
5.10 You agree that no unused
“free hours” (if any) as specified in the Application or services
plan selected by you (or otherwise allotted to you) may be carried forward to
the following month and that no credit or refund is available in respect of any
time when all or part of Netfront Services are inoperable,
limited, suspended, or otherwise unavailable to you.
5.11 You acknowledge that:
5.11.1 NF’s agents or contractors may
provide all or any part of Netfront Services.
5.11.2 NF’s agent (including but not
limited to Netfront Broadband Limited) may invoice
you on NF’s behalf and such invoice shall be valid as if rendered by NF.
Such invoice shall not prejudice any rights of NF to subsequently claim against
you.
5.11.3 Should NF invoice you in respect to any
Content as agent for a third party Content provider,
NF is not the supplier of or responsible for such Content.
5.12 In case of disputes over any
usage or other Charges NF’s decision based on its Netfront
Services usage records and those of any third party who may assist NF to
provide the Services shall be final and binding on you.
6.
Commencement & Termination of Agreement
6.1 This Agreement shall
commence when NF accepts your Application and may be terminated by either party
on 30 days written notice to the other, unless a service term has been agreed
otherwise.
6.2 NF may suspend or
terminate this Agreement in whole or in part immediately (followed thereafter
by written notice to you), if in NF’s opinion:
6.2.1 You fail to pay NF any sums or
Charges due by you to NF by the due date;
6.2.2 You are in breach of any terms
or condition of this Agreement and (where the breach is capable of remedy) you
fail to remedy the breach within 7 days of the date of a written notice from NF
specifying the breach and requiring its remedy;
6.2.3 You become insolvent or
bankrupt or NF reasonably believes that you may be unable to pay the Charges or
your debts generally;
6.2.4 You breach any of the terms
and conditions of any Software license granted pursuant to this Agreement or
which accompanies the Software; or
6.2.5 You use Netfront
Services for any illegal or improper purpose or for any unsolicited advertising
or promotion.
6.3 Should this
Agreement be terminated for any reason whatsoever you:
6.3.1 hereby irrevocably authorize
NF to erase any or all of the Subscriber’s Content after the date of
termination without prior notice to you;
6.3.2 shall allow NF’s
employees, agents, contractors or affiliated companies to enter upon your
premises for the purposes of removing the Equipment, and
6.3.3 irrevocably forfeit any right
and ownership to any Subscriber’s Assets at NF’s premises after the
date of termination, irrevocably authorize NF to dispose of and remove any such
Subscriber’s Assets, and unconditionally bear any costs to such disposals
and removals;
6.3.4 shall within seven days upon
demanded pay NF all sums and fees and Charges incurred pursuant to this Agreement.
6.4 Termination of this
Agreement shall not affect any rights or liabilities of the parties that have
arisen prior to the date of termination (including but not limited to any
rights or liabilities which may arise after the date of termination due to any
reason stated in clause 6.2 above).
6.5 All indemnities,
restrictions and obligations on your part contained in this Agreement shall
survive termination of this Agreement.
7.
Liabilities and Warrantees
7.1 NF shall not be
liable to you in the event that NF is unable to perform on obligation or
provide Netfront Services to you because of any
factor outside of NF’s control, including but not limited to acts of God,
industrial action, default or failure of a third party, governmental action, or
interruption of Netfront Services.
7.2 Netfront
Services and the Software are supplied on an “as is” basis without warranties
of any kind. All conditions, warranties and responsibility in relation to the
provision of the Software and Netfront Services
(including but not limited to title, fitness for any purpose, merchantability,
standard of quality or performance or accuracy of Netfront
Services or the Software) are excluded to the extent permitted by law unless
otherwise specified in this Agreement. NF expressly disclaims any warranty or
responsibility:
7.2.1 that the Software and Netfront Services will be uninterrupted, error free or free
of any contaminating or destructive properties;
7.2.2 as to any results obtained
from using Netfront Services.
7.3 In no event will NF
be liable to you whether in contract, tort, statute or otherwise (including but
not limited to for negligence, breach of contract, defamation, or intellectual
property right infringement) for any special, direct, indirect or consequential
loss or damage (including but not limited to loss of revenue or profits, loss
of data or goodwill, or the loss of use of any equipment or software) which is
suffered or incurred by you arising out of the use or in any other way out of
this Agreement, Netfront Services or the Software.
7.4 NF shall not be
party to any transaction made between you and any third party through use of Netfront Services.
7.5 NF cannot accept and
disclaim any responsibility to control the Content, whether or not the Content
is stored at NF. All information provided through Netfront
Services (including but not limited to the Content) is for reference purposes
only. NF, its agents, contractors, affiliated companies and all third party Content providers do not guarantee the accuracy
or completeness of any information provided through Netfront
Services (including but not limited to any Content), and do not accept any
liability for any cost, expense, loss, or damage arising from any inaccuracies
or omissions.
7.6 NF accepts no
responsibility and makes no representation or warranty:
7.6.1 in relation to the
completeness, accuracy or timeliness of the Content or its fitness for any
purpose;
7.6.2 that any Content or messages
can be duly stored or transmitted from or to, or received by, you through Netfront Services.
7.7 NF disclaims
liability for any error, omission or misstatement in or arising from the
Content. NF does not endorse or recommend any person, name, product or service
referred to in the Content. The Content does not constitute NF’s view or
opinion and NF expressly disclaims any responsibility or warranty to exercise
any editorial control over or to edit or amend or delete any Content before it
is accessed by you through Netfront Services. NF
accepts no responsibility and makes no representation or warranty that the
Content will not be objectionable or offensive to you or any other person.
7.8 You irrevocably
authorize NF to amend or erase any or all of the Subscriber’s Content if,
in its absolute discretion, NF deems that the Subscriber’s Content is in
any way improper, inappropriate or in contravention of this Agreement.
7.9 No oral or written
information given by NF, its employees, affiliates, agents or the like shall
create a warranty or binding representation. You hereby acknowledge that you
have not and will not rely on such information.
7.10 NF does not warrant the
confidentiality or security of data whether personal or otherwise transmitted
through Netfront Services (although NF’s
current practice is to take reasonable steps to maintain confidentiality).
7.11 Nothing under this Agreement
limits NF’s liability for any personal injury or death caused by NF’s
negligence. However, you acknowledge and take notice that Netfront
Services are not appropriate for use in circumstances where personal injury or
death could arise from reliance on Netfront Services
whether or not NF is negligent.
7.12 NF’s total liability
under Agreement, whether in relation to any one incident or series of incidents
arising from a common cause, shall not exceed the total Charges received by NF
from you in the period of 12 months immediately preceding the incident, or in
the case of a series of incidents arising from a common cause, immediately
preceding the first of such incidents provided always that NF’s total
liability for all losses incurred by you shall be limited to the amount of such
total Charges or HK$500,000.00, which ever amount shall be the lower.
7.13 Any claim by you against NF
arising out of this Agreement must be notified to NF within 28 days of the
incident giving rise to such claim failing which you will be deemed to have
waived your rights in respect of such claim.
7.14 NF’s employees, agents,
contractors and affiliated companies shall have the benefit of the rights,
exclusions and limitations of the provisions contained in this clause 7 as if
such provisions were expressly for their benefit. To the extent of this clause
7, NF enters into this Agreement not only on its own behalf but also as agent
and trustee for such employees, agents, contractors and affiliated companies.
8.
Personal Data
8.1 To the extend
permissible by law, where any personal data (“Personal Data”) is
disclosed to NF in the performance of its obligations under this Agreement, you
acknowledge and agree that such Personal Data may be used (whether in Hong Kong
or abroad) and retained by NF for the following purposes and for any other
purposes as may be agreed between you and NF or required by law from time to
time.
8.1.1 Provision of Netfront Services;
8.1.2 Offering or provision of goods
or services by NF or its affiliated companies in relation to Netfront Services;
8.1.3 Marketing research and other marketing
proposes of NF, its agents, or its affiliated companies in relation to Netfront Services;
8.1.4 Processing of any benefits
arising out of or in connection with Netfront
Services.
8.1.5 Analysis, verification and/or
checking your credit, payment and/or status in relation to provision of Netfront Services;
8.1.6 Processing of any payment
instructions, direct debit facilities and/or credit facilities requested by you;
8.1.7 Enabling the daily operation
of your account and/or the collection of amounts outstanding in such account in
relation to Netfront Services;
8.1.8 Enabling NF or its affiliated
companies to comply with any industry practices;
8.1.9 Disclosures required by law;
and
8.1.10 Enforcement of this Agreement.
8.2 You further agree
that NF may disclose and transfer such Personal Data (whether in Hong Kong or
abroad) to NF’s agents, affiliated companies, contractors, debt
collection agencies, credit reference agencies, credit providers, security
agencies, financial institutions, and any other persons under a duty of
confidentiality to NF or any of its affiliated companies, and any of NF’s
actual or proposed assignees or transferees of NF’s right with respect to
you to use, disclose, hold, process, retain, or transfer such Personal Data for
the purposes specified in clause 8.1 above.
8.3 Where any Personal
Data, other than your Personal Data, is disclosed to NF in the performance of
its obligations under this Agreement, you undertake and agree that you have
procured all third parties’ consents necessary from time to time for NF
to use or disclose such Personal Data for the purposes specified in clauses 8.1
and 8.2 above.
9.
Equipment & Access to Premises
9.1 All Equipment shall
remain NF’s or NF’s agents’ property at all times and you
will not acquire any rights or title in them.
9.2 You shall provide suitable
accommodation, utility services, and environmental conditions for the
Equipment. You shall keep any Equipment on your premises safe, and shall be
liable to NF for any loss or damage to the Equipment. You shall notify NF as
soon as practicable of any damage, fault, theft or loss of the Equipment.
9.3 You shall not, nor
permit any other person to alter, remove, add to, or otherwise interfere with
the Equipment or any identifying marks or numbers on the Equipment. You shall
operate and use the Equipment in a proper manner.
9.4 You shall allow NF’s
employees, agents, contractors or affiliated companies to enter upon your
premises for the purposes of inspecting, repairing, maintaining and/or removing
the Equipment. You shall provide safe access to and safe working conditions at
your premises.
10.
General Provisions
10.1 This Agreement is the complete
and exclusive statement of the agreement between you and NF. This Agreement
supersedes all understandings or prior agreements, whether oral or written, and
all representations or other communications between you and NF. Any variations
or additions to this Agreement are only valid if confirmed in writing by on
officer authorized by NF. NF may amend these terms and conditions from time to
time in accordance with its License and may post such amendments on the Netfront Services website such amendments to take effect
immediately upon compliance with such license or at such later date as
specified in any such amendment.
10.2 This Agreement is personal to
you. Either party may assign this Agreement but you may only do so with NF’s
prior written consent. You shall not, transfer, charge or sub-license all or
part of your rights or obligations under this Agreement.
10.3 You agree to indemnify NF for
all losses, damages, or expenses incurred by NF in connection with the
enforcement of this Agreement against you.
10.4 Any term or condition
prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction
to the extent of the prohibition or unenforceability. This shall not affect the
validity or enforceability of that term or condition in any other jurisdiction.
All the other terms and conditions shall remain in full force and effect.
10.5 Any failure or delay by NF in
exercising any right, power or remedy under this Agreement shall not operate as
a waiver of any right, power or remedy.
10.6 Save as specified herein, any
notice or other communication to be given under this Agreement shall be in
writing and shall be served by leaving it or sending it by facsimile or prepaid
post to the address of the parties specified in this Agreement or as are
notified by either party to the other from time to time.
10.7 Any notice or communication
given under this Agreement shall be deemed to be served/ received by the other
party within 48 hours of posting, or immediately upon faxing if the
transmission report indicates that the fax transmission was successful.
This Agreement is subject to Hong Kong laws and the
parties submit to the non-exclusive jurisdiction of the Hong Kong courts. ¨