1. Acceptance of Terms
The terms “User” and “Users” herein refer to all individuals and/or entities accessing and/or using the Sites and Services at anytime for any reason or purpose.
2. Propriety of Content / Use of the Services
2.1 Transmission, distribution or storage of any information, data, texts, messages, software, music, sound, brands, photographs, graphics, videos, messages, goods, products, services, HTML, links to other websites or resources and other materials (collectively “Content”) in violation of the laws, regulations or morality standard of Hong Kong and/or the jurisdiction within which the relevant computer servers are operated or the Users at the time of using the Services are located is strictly prohibited. Such restriction extends to, amongst others, Content which infringes the copyright, trademark, trade secret or any other legal or proprietary rights of others or violate the privacy or publicity or other personal rights of others. Notwithstanding anything contained herein, the Company shall have the sole and absolute discretion to determine whether the Content is in violation of any of the said laws, regulations or morality standard and that the said restriction was triggered. The Company reserves the right to remove, edit or delete from, or refuse transmission, distribution, publication or storage of any such unlawful or improper Content on or via its computer servers as it sees fit (whether prior notice is given to the relevant User or not). The Users agree that the Company shall not be liable for any such removal, editing or deletion of the Content.
2.2 The Company expressly forbids the Users from using the Company’s computer servers for propagation, distribution, housing, processing, storing or otherwise handling in any way lewd, obscene, harmful, defamatory, libelous, discriminatory, harassing, threatening, abusive, hateful, pornographic or unethical Content which the Company may at its sole and absolute discretion determine as offensive or objectionable.
3. Intellectual Property Rights
3.1 All Content published on the Sites by the Company on behalf of the Users are the intellectual properties of the Company which are protected by copyright and trademark laws and may not be downloaded or otherwise duplicated without the express written permission of the Company.
3.2 The Users acknowledge and agree that the Company owns all intellectual property rights including without limitation the copyrights and trademarks to the designs and logos of the webpages of the Users designed by the Company and hosted and published on/through the computer servers of the Sites (“Intellectual Property Rights”).
3.3 The Company may agree to transfer and assign any of the Intellectual Property Rights to the relevant Users in consideration of the relevant Users agreeing to make payment to the Company of a premium and all such other fees and costs as may be necessary for the Company to transfer and assign the Intellectual Property Rights to the relevant Users. The amount of such premium and all such other fees and costs shall be agreed between the Company and the relevant Users in writing.
4. Payment Terms
4.1 The Company will invoice the User for full payment of the Fee upon the User’s signing of the Service Agreement, at which time the User shall make payment of the Fee forthwith. Payment of the Fee shall be made by cheques drawn payable to “88DB Services Limited” or by any other means as the Company may specify or determine from time to time.
4.2 If the User is in default of payment of the Fee, an extra charge at the rate of 1.5 % per month will be imposed on the amount due from the User and owing to the Company (“Late Charge”) which shall be payable to the Company forthwith and shall be paid at the time of paying the Fee.
4.3 If the User does not make payment of the Fee to the company as scheduled for any reason, the Company reserves the right to and may at its absolute discretion terminate at any time with or without prior notice to the User the Services to the relevant User and to remove, edit or permanently delete from its computer servers any and all information and/or Content contained in the relevant User’s account, including but not limited to any information, mailing lists, files, messages, emails, and any web pages generated by the relevant User and/or through utilizing the Services. The Company shall not be liable for any such removal, editing or deletion of information and/or Content.
4.4 The User shall be required to make payment of additional fees (as may be determined at the sole and absolute discretion of the Company) for the resumption and/or setting up of the Services after the same has been terminated or cancelled.
4.5 The Users agree to reimburse the Company for all fees and expenses incurred by the Company to recover the Fee, Late Charge and any such interest incurred thereon, or such other fees due and owing to the Company, including but not limited to all legal fees and expenses.
4.6 There shall be no refund or set-off of any amount paid to the Company by the Users for cancellation of the Services or earlier termination of the Service Agreement at any time.
5.1 If the User is in breach of any of the Terms and Conditions or any terms of the Service Agreement, the Company may, at its sole and absolute discretion, suspend the User’s access to and use of any of the Services until such breach has been remedied and rectified, or, where the breach is not capable of being rectified or remedied or that such breach has not been duly remedied and rectified in the manner and / or within the time stipulated by the Company after notice of the same has been given to the relevant User, terminate the Service Agreement and the User’s access to and use of any of the Services and/or the relevant sectors of the Sites.
5.2 Resumption of the Services will be at the sole and absolute discretion of the Company upon such terms and conditions as it shall determine.
6. Term and Termination
6.1 The User will be entitled to use the Services on the date as specified in the Service Agreement and continue in force until such date as specified in the Service Agreement, unless and until terminated earlier pursuant to Paragraph 5.1 or this Paragraph 6.
6.2 Either party may terminate the Service Agreement by giving the other party at least 30 days’ prior written notice. Upon termination of the Service Agreement, the User shall pay the Company all outstanding fees including but not limited to the Fee and Late Charge and all such interest and/or other fees due and owing to the Company accrued up to and including the date of termination of the Service Agreement. The User confirms and acknowledges that no refund or set-off whatsoever will be made by the Company for any amount paid by the User.
6.3 Without prejudice to Paragraph 5.1 and notwithstanding anything contained herein, if the Company concludes, at its sole and absolute discretion, that the User:
- has breached, violated, or acted contrary to the spirit of the Service Agreement and/or the Terms and Conditions, including any applicable policy of the Company or any applicable laws or regulations; or
- has engaged in activities that may damage the rights or reputation of the Company, its affiliates or others, the Company shall have the right and may at its sole and absolute discretion terminate the Services and delete or remove the Content from the Sites forthwith with or without notice to the relevant User.
6.4 Without prejudice to any other rights of the Company to terminate the Service Agreement, the Company may terminate the Service Agreement forthwith if the User:
- breaches any of the Terms and Conditions or any terms of the Service Agreement and fails to remedy such breach within 7 days from the date when notice requesting that any breach be remedied or rectified has been given to the User, save and except in the case of the User failing to pay the Fee and/or Late Charge, which must be remedied or rectified immediately upon notice being given by the Company;
- becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or
- becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 15 days of filing.
6.5 In the event the Company shall at its sole and absolute discretion determine that the Terms and Conditions and/or the Services provided by the Company may be in conflict with any rules, regulations, and/or orders of or issued by a judicial, legislative or regulatory body or authority, the Company may terminate the Services and/or the Service Agreement forthwith without any compensation to the User.
6.6 Upon termination or expiration of the Service Agreement, the User’s access to the Services and/or certain sectors of the Sites will be terminated forthwith and all Content and information contained in the User’s account and/or posted on the Sites, including but not limited to order processing information, mailing lists, files, messages, emails, and any web pages generated, will be permanently removed and deleted by the Company save for the design of the User’s own webpage(s) which may be retained and returned to the User upon the User’s prior written request being given to the Company and subject to the User making payment of a prescribed fee to the Company. Notwithstanding anything contained herein, the Company shall not be liable for such removal or deletion.
7. Suspension and Discontinuation of Services
Without prejudice to any of the Company’s rights and benefits hereunder, the Company reserves the right, at its sole and absolute discretion, at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice to the User. The User agrees that the Company shall not be liable to the Users and/or to any third party for any such modification, suspension or discontinuance.
8.1 The User confirms and acknowledges that all the Content, whether publicly posted or privately transmitted, and the related materials are the sole responsibility of the person from whom such Content originated. The User agrees that it shall be solely and entirely responsible for the Content submitted for publication on the Sites via the Company’s computer servers. The User shall ensure that the Content comply with the Terms and Conditions and all applicable laws and regulations and that it shall not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of any third parties, or contain anything libelous or harmful.
8.2 The User undertakes not to submit any Content for publication on the Sites via the Company’s computer servers that contains anything leading to or susceptible to abusive or unethical use of the web hosting product(s) and/or the host servers. Abusive and unethical Content and uses include, but not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, hacking, spam, warez, and any harassing, offensive and/or any Content that is harmful. The Company retains the sole and absolute discretion to determine whether a website or any part of it falls within the aforesaid categories and may remove or delete temporarily or permanently, or refuse transmission, distribution, publication or storage of any such Content as the Company sees fit. Notwithstanding anything contained herein, the User agrees and acknowledges that the Company shall not be liable for removal or deletion of any such Content from the Sites or otherwise.
9. Own Risk
The User agrees that he/she/it uses the Services at its own discretion and risk, and that he/she/it shall be solely responsible for any damage caused to its computer system or any loss of data that results from the use or inability to use the Services. With respect to the provision of the Services, the User acknowledges that the Company, to the fullest extent as permitted by the applicable laws, makes absolutely no warranties of any kind, whether express or implied, including but not limited to the implied warranties in respect of the Services.
10.1 The User agrees to indemnify and hold harmless the Company, its officers, directors, employees, agents, contractors and affiliates (and the officers, directors, employees, agents or contractors of its affiliates) from and against any claims, demands, actions, proceedings, losses, costs, expenses, and damages howsoever arising from or in relation to the posting, use and/or publication of any Content (whether on the Sites or not), the User’s conduct, use of the Services, any alleged violation of the Terms and Conditions, any applicable policy of the Company, laws or regulations, or any alleged violation of rights of any third parties.
10.2 The Company reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, but in doing so, the Company shall not be deemed to have waived the User’s indemnity obligations.
11.1 Whilst the Company makes every endeavor to provide quality service to the Users, it does not warrant that the Services will be operated error-free or that its computer servers are free of viruses or other harmful mechanisms. If use of or inability to use the Services causes any loss of data or results in delays or disruption of the Services to the Users, the Company shall not be liable for any damages, loss and/or costs suffered or incurred by the Users directly or indirectly arising therefrom. The Services are provided without any guarantees or warranties of any kind, to the fullest extent permitted by the applicable laws. The Company disclaims all guaranteed or warranties, including without prejudice to the foregoing, any in respect of merchantability, non-infringement of third party rights, fitness for particular purpose, or about the accuracy, reliability, completeness or timeliness of the Content and the Services
11.2 The Company and its officers, directors, employees, agents, contractors and affiliates (and the officers, directors, employees, agents or contractors of its affiliates) shall not be liable in any event for any losses, claims or damages suffered by the Users whatsoever and howsoever arising or resulting, whether directly or indirectly, from their use or inability to use the Services or negligence and disputes between the Users and any third parties.
11.3 The Company assumes no responsibility for the timeliness of, deletion of, mis-delivery of, or failure to store any communication or personalization settings of the Users’ accounts and/or any Content or such information published on the Sites.
11.4 Any Content published on the Sites by the Company for the Users may be viewed by users of other web sites linked to the Sites and the Company is not responsible for any improper and/or illegal use by any user or third party from linked third party web sites of any data or materials posted on the Sites. Links to third party web sites provided on the Sites are provided solely as a convenience to the Users and as Internet navigation tools, and not in any way as an endorsement by the Company of the contents on such third party web sites.
12. Limitation of Liability
12.1 Without prejudice to the terms hereunder and subject to the applicable laws, the aggregate liability of the Company to a User for all claims arising from or in relation to the Services shall not exceed the aggregate amount of the Fee actually paid by the relevant User (if any) over the course of the term of the Service Agreement.
12.2 The Users agree that the limitations of liability and disclaimers of the Company specified in the Terms and Conditions shall survive the term of the Service Agreement and shall remain applicable and enforceable irrespective of application of any laws and regulations.
13. Security Measures
The provisions of the Terms and Conditions shall be enforceable independently of each other and the validity of each provision shall not be affected if any of the others is invalid. In the event any provision of the Terms and Conditions is determined to be illegal, invalid or unenforceable, the validity and enforceability of the remaining provisions of the Terms and Conditions shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of the Terms and Conditions one or more provisions as similar in terms as may be legal, valid and enforceable under the applicable law.
Notice under the Terms and Conditions shall be in writing and shall be deemed to have been delivered upon posting to the party to whom such notice is directed at the address specified below. Notice to the Company shall be addressed to 88DB Services Limited, 9th Floor, Amtel Building, 148 Des Voeux Road Central, Central, Hong Kong, and that to the User shall be addressed to the postal address specified in the Service Agreement, or such other address as either party may notify the other by giving prior notice as provided above.
16. Force Majeure
Except for the obligation to pay under Paragraph 4, neither party shall be liable for any failure or delay in its performance under the Service Agreement due to any cause beyond its reasonable control, including but not limited to, acts of war, acts of terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, governmental acts, change of governmental rules, regulations or orders, or failure of the Internet (not resulting from the actions or inactions of the Company), provided that the delayed party:
- gives the other party prompt notice of such cause; and
- uses its reasonable efforts to promptly correct such failure or delay in performance.
17.1 Except as expressly provided herein, the User shall not assign its rights or delegate its duties under the Service Agreement either in whole or in part, without the prior written consent of the Company. Any attempted assignment or delegation without such consent will be void.
17.2 The Company may assign the Service Agreement in whole or in part. The Company may also delegate the performance of the Service to third parties.
17.3 The Service Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
The failure of the Company to exercise or enforce any right under any provision of the Terms and Conditions shall not constitute a waiver of any of its rights hereunder.
Paragraphs 2.1, 2.3, 3, 4, 6.5, 6.6, 7, 8, 10, 11, 12 and 20 shall survive any termination or expiration of the Service Agreement.
20. Governing Law and Jurisdiction
20.1 The Terms and Conditions shall be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”).
20.2 The Terms and Conditions and any dispute or matter arising from or incidental to the use of the Sites shall be governed by and construed in accordance with the laws of Hong Kong.
Any dispute, controversy or claim arising out of or relating to the Terms and Conditions including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this Clause:
- The appointing authority shall be Hong Kong International Arbitration Centre (hereinafter referred to as "HKIAC").
- The place of arbitration shall be in Hong Kong at HKIAC.
- There shall be only one arbitrator.
- The language to be used in the arbitral proceedings shall be English.
In the event of any breach of the Terms and Conditions by any one party, the other party shall be entitled to remedies in law and equity as determined by arbitration.