TERMS AND CONDITIONS

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 connected time charges, subscriptions or monthly charges, or usage charges, or PNETS charges or license fees payable to the government, or administration fees.

“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 Netfront Information Technology Limited

“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 license 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 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 Netfront Information Technology 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 Netfront Information Technology 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, in its absolute 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 NT.  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.

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.

6.2         NF may suspend or terminate this Agreement in whole or in part immediately (followed thereafter by written notice to you at your last known address), if in NF’s opinion.

6.2.1       You fail to pay NF any sums due by you to NF by the due date;

6.2.2       You are in breach of any term 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       NF ceases to make Netfront Services or any part of Netfront Services available for any reason.

6.2.6       You use Netfront Services for any illegal or improper purpose 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 without prior notice to you;

6.3.2       shall immediately return the Email addresses to NF, erase all the Software, and cease to use the Services;

6.3.3       shall allow NF’s employees, agents, contractors or affiliated companies to enter upon your premises for the purposes of removing the Equipment, and

6.3.4       shall within seven days of such termination pay NF all Charges incurred pursuant to this Agreement up to and including the date of termination.

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 your failure to comply with clause 6.3 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         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.    ¨