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1. GENERAL TERMS AND CONDITIONS
| 1.1 |
Telecommunications services provided by the Company are subject to the terms and conditions set out below. |
| 1.2 |
Capitalised terms in these Conditions have the meanings given to them in clause 18. |
2. SERVICE
| 2.1 |
The Company agrees to provide the Service in accordance with the Agreement. |
| 2.2 |
The Company will use its reasonable endeavours to provide the Service with care and skill from the Service Commitment Date subject to:
| (a) |
the Service being available in the area where the Premises are located; and |
| (b) |
the Customer's compliance with the Agreement; and |
| (c) |
the Customer being in compliance with the Company's credit policy requirements from time to time. |
|
| 2.3 |
The Company does not guarantee continuous or fault free provision of the Service and shall not be responsible for the transmission of the Service over any other telecommunications network or beyond the Network termination point. |
| 2.4 |
The Company will determine the most appropriate means of providing the Service including the method, technology and route of delivery of the Service to the Customer. The Company may vary the method, technology and route of delivery at any time without notice to the Customer. |
3. CHARGES
| 3.1 |
The Customer shall pay the Company the Charges which the Company's records attribute to the Customer. |
| 3.2 |
Charges will be calculated by reference to data recorded or logged by the Company and not by reference to any data recorded or logged by the Customer. Records held and call logging procedures adopted by the Company will be conclusive evidence of the usage of the Service and the Charges payable by the Customer. |
| 3.3 |
Usage charges for the Service will be measured using such unit of measurement as is adopted by the Company for that Service from time to time. |
| 3.4 |
The Rental in respect of the Service is payable in advance and the first Rental will be calculated and is payable on the Service Commencement Date. |
| 3.5 |
If any Rental or other Charge commences on a date other than the first day of a month or terminates on a date other than the last day of a month, the Rental or Charge due for the part month shall be calculated pro-rata, on a 30-day month basis. |
| 3.6 |
Charges do not include any duties, taxes or similar imposts. The Customer shall pay for any duties, taxes or similar imposts which may from time to time be imposed on, or in relation to, the Service, any payment for the Service or the Agreement. If at any time an applicable law obliges the Customer to make a deduction, withholding or payment in respect of taxes from any payment in relation to the Service, any payment for the Service or the Agreement, the Customer must indemnify the Company against such deduction, withholding or payment by paying the Company at the time that the payment to the Company is due. |
| 3.7 |
If the telecommunications services of a third party are accessed by the Customer using the Service, the Company may require the Customer to pay to the Company the charges in respect of the telecommunications services of that third party if the Company is required to pay those third party charges. |
| 3.8 |
The Customer:
| (a) |
is responsible for all Charges incurred through the use of the Service whether such use is by the Customer or a third party with or without the authority, knowledge or consent of the Customer; and |
| (b) |
will continue to be responsible for all Charges incurred between the time of suspension or a request for termination of the Service and the actual termination of the Service. |
|
| 3.9 |
If the Company has terminated or withdrawn supply of the Service under clause 13 or 14:
| (a) |
the Company reserves the right to refuse to reconnect the Service; and |
| (b) |
if the Company subsequently agrees to reconnect the Service, the Customer may be required to pay a re-connection fee in advance as a pre-condition to making the Service available again. |
|
| 3.10 |
The Company may vary the Charges from time to time. |
| 3.11 |
The Customer shall pay any USC to the Company:
| (a) |
in the manner required in the Special Conditions or the Charges; and |
| (b) |
if not required by the Special Conditions or the Charges, in such manner as is determined by the relevant Government Agency. |
|
| 3.12 |
The Company will account to a USC Provider for all USC payments received under clause 3.11. |
| 3.13 |
If the Company is required to pay a USC in relation to the provision of the Service it may increase the Charges by the amount of that USC. |
4. INVOICING AND PAYMENT
| 4.1 |
Subject to clause 4.2, the Company will issue a monthly invoice to the Customer. |
| 4.2 |
The Company reserves the right to:
| (a) |
vary the billing frequency at any time without prior notification; |
| (b) |
issue an interim bill for accrued charges, which will become immediately due and payable; |
| (c) |
re-issue any bill if any error is subsequently discovered; and |
| (d) |
bill the Customer through a billing agent or any of its Affiliates. |
|
| 4.3 |
Processing and verification procedures (including delays in receipt of billing information for interconnected calls) may mean that not all of the Service used during the period covered by an invoice can be included in that invoice. The Company may include the Charges for such usage in any subsequent invoice. |
| 4.4 |
The Customer shall pay each invoice in full on or before the Due Date without set off or counter claim and free and clear of any withholding or deduction and in the manner specified in the invoice or if no such manner is specified in the invoice by cash, cheque, direct debt or other method permitted by the Company. |
| 4.5 |
If a cheque or payment by direct debit is dishonoured or cancelled the Customer shall pay to the Company any:
| (a) |
resulting bank or other charges incurred by the Company; and |
| (b) |
associated administration charge imposed by the Company. |
|
| 4.6 |
If a payment due by the Customer to the Company under the Agreement is not received by the Due Date the Customer shall pay interest in respect of the overdue amount calculated daily from the Due Date until the date of payment at an interest rate equal to 2% above the prime lending rate of The Hongkong and Shanghai Banking Corporation Limited as current from time to time. The Company may also impose additional charges to cover its reasonable expenses and costs incurred in recovering outstanding
amounts due under this Agreement (including the cost of engaging a debt recovery agent or instituting legal proceedings). |
| 4.7 |
Subject to clause 3.2, all enquiries concerning any invoice shall be made to the Company within 15 days of the relevant invoice date otherwise the invoice will be deemed to be accepted by the Customer. |
| 4.8 |
The Company may set off any amount owed by the Customer to the Company against any amount owed by the Company to the Customer under or in relation to the Agreement. |
5. SECURITY DEPOSIT
| 5.1 |
At any time before or during the provision of the Service the Company may require the Customer to provide a security deposit for Charges to be incurred in relation to provision of the Service. The amount of the deposit may be any amount required by the Company. The Company may in its absolute discretion vary its requirement for a security deposit under this clause 5.1 at any time. |
| 5.2 |
A deposit may be held until:
| (a) |
termination of the Agreement under clause 14; and |
| (b) |
all of the Customer's liabilities to the Company in respect of the Service are discharged. |
|
| 5.3 |
The Company shall be entitled to apply the security deposit in whole or any part to satisfy any amount due by the Customer to the Company. |
| 5.4 |
A security deposit does not relieve the Customer from its obligation to pay amounts to the Company as they become due and payable, nor does it enable the Customer to make allowance by way of set-off, deduction or withholding from any such amount. The deposit will not affect any right of the Company to suspend, cancel or terminate the Agreement for non-payment. |
6. USE OF THE SERVICE
| 6.1 |
The Customer shall:
| (a) |
use the Service and shall ensure that third parties use each Customer Service in accordance with the Agreement and all Applicable Laws; and |
| (b) |
not use the Service or the Network in any manner that would cause the Company to be in breach of any Applicable Law; and |
| (c) |
not be directly or indirectly involved in any Unauthorised Activity or in the use by a third party of the Service or a Customer Service for or in connection with any Unauthorised Activity; and |
| (d) |
promptly notify the Company of any Unauthorised Activity in relation to the Service, a Customer Service or the Network of which the Customer becomes aware; and |
| (e) |
co-operate with the Company in establishing procedures to eliminate or reduce Unauthorised Activities and the opportunity for Unauthorised Activities; and |
| (f) |
provide such information to the Company as is available to the Customer which may be of assistance to the Company in identifying and preventing Unauthorised Activities; and |
| (g) |
not use the Service, and shall ensure that third parties do not use any Customer Service:
| (i) |
for any improper purpose or for the purpose of sending any unsolicited advertising material or any material of an obscene or indecent nature; or |
| (ii) |
in any manner which is unauthorised, fraudulent, suspicious or illegal, whether under any Applicable Law or otherwise; or |
| (iii) |
in a manner which constitutes an infringement by the Customer or the Company of the rights of any person (including but not limited to copyright and other intellectual property rights and rights of confidentiality) or a violation or infringement of any duty or obligation in contract, tort or otherwise, to any third party; and |
|
| (h) |
not, and shall ensure that third parties do not, either by act or omission, interfere with or impede or impair use of, or operation of, or do anything likely to interfere with or impede the use of, or operation of, the Service or the Network or any telecommunications service or network of a third party; and |
| (i) |
not take or allow any other person to take any unauthorised action in relation to the Network or the Service; and |
| (j) |
promptly notify the Company of any fault in the Service or deterioration in the quality of the Service; and |
| (k) |
comply with directions given by the Company from time to time in relation to:
| (i) |
modifications required to any apparatus at the Premises or other action necessary to be taken to eliminate any interference, impediment or impairment to the Service or the Network; or |
| (ii) |
any use of the Service that is reasonable or prudent to ensure that the Customer complies with this clause 6.1. |
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| 6.2 |
In promoting or supplying any Customer Service or making any public statement in relation to the Service or any Customer Service, the Customer shall not make any representation that:
| (a) |
the Customer Service is supplied using the Network; |
| (b) |
passes off or misrepresents that the Customer Service is provided in whole or in part by the Company; or |
| (c) |
the Customer is authorised to act for or on behalf of the Company. |
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7. PROVISION OF INFORMATION
| 7.1 |
If the Company requests Personal Data from the Customer the Customer may decline to provide that Personal Data but in that event the Company may decline to provide the Service to the Customer. |
| 7.2 |
Unless the Customer informs the Company otherwise when making the Application or at any time thereafter, the Customer is deemed to have consented that its name, address, business and telephone and/or fax number(s) be included in printed directories and directory enquiry services and be disclosed to a third party for related purposes. |
| 7.3 |
The Customer agrees that the Company may use the Personal Data for any and all of the following purposes:
| (a) |
provision of the Service to the Customer (including the transfer of such Personal Data to other telecommunications network providers or third parties as necessary for the provision of the Service and goods and services supplied in connection with the Service); |
| (b) |
matching (as defined in the Personal Data (Privacy) Ordinance) the Personal Data with other data collected for other purposes and from other sources including third parties in relation to the provision of the Service; |
| (c) |
marketing of goods and/or services by the Company, its agents or Affiliates, in relation to the Service and/or the goods or services of such agents or Affiliates; |
| (d) |
business planning and improving goods and/or services in relation to provisioning of the Service or other telecommunications services of the Company and/or its Affiliates; |
| (e) |
processing of any benefits arising out of or in connection with the Service; |
| (f) |
analysing, verifying and/or checking of the Customer's credit, payment and/or status in relation to provision of the Service or other telecommunications services of the Company and/or its Affiliates; |
| (g) |
processing of any payment instructions, direct debit facilities and/or credit facilities in relation to provisioning of the Service or other telecommunications services of the Company and/or its Affiliates or requested by the Customer; |
| (h) |
enabling the daily operation of the Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Service or other telecommunications services of the Company and/or its Affiliates; |
| (i) |
enabling the Company to comply with its obligations to interconnect, with other industry practices, or with obligations to third parties or the Government Agencies in relation to the Service or other telecommunications services of the Company and/or its Affiliates; |
| (j) |
keeping the Customer informed of the Service or other services of the Company and/or its Affiliates; |
| (k) |
prevention or detection of crime; |
| (l) |
disclosure as permitted or required by law; and |
| (m) |
any other purposes as may be agreed to by the parties. |
|
| 7.4 |
The Customer agrees that the Personal Data may be disclosed and transferred in Hong Kong or to/in places outside Hong Kong to the Company's Affiliates, agents, contractors, telecommunications operators, any other third parties (including, collection agencies, credit reference agencies, security agencies, credit providers or other financial institutions and any of the Company's actual or proposed assignees or transferees) for such person to use, disclose, hold, process, retain or transfer such Personal Data for the purposes listed in clause 7.3. |
| 7.5 |
The Customer shall, as soon as practicable, notify the Company of any change of address or any other particulars provided to the Company which may affect the provision of the Service to the Customer. |
| 7.6 |
On request by the Company, the Customer shall provide the Company with information relating to the Customer and its use of the Service reasonably required by the Company:
| (a) |
to assist the Company in complying with its obligations under any Applicable Law and to report to any Government Agency regarding compliance with those obligations; and |
| (b) |
to assess whether or not the Customer has complied, is complying and will be able to continue to comply with all its obligations under the Agreement. |
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| 7.7 |
If the Customer has not complied with clause 7.6 within 2 business days, the Customer licences the Company and its authorised representatives, during the term of the Agreement and for 3 months after its termination, to enter the premises owned or occupied by the Customer during business hours, after giving reasonable notice, for the purpose of obtaining any information requested under clause 7.6. |
| 7.8 |
For further information on the obligations and policies (including your right of access and correction of personal data) of the Company under the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong), please refer to the PCCW Privacy Policy Statement published on http://www.pccw.com. |
8. SERVICE ADDRESSING INFORMATION
| 8.1 |
The Customer acknowledges that the telephone or service numbers or other network addressing information assigned by the Company to the Customer are governed by numbering plans and guidelines issued by the Telecommunications Authority and that the Customer has no title, goodwill or interest in any number assigned to the Customer. |
| 8.2 |
If the Company withdraws or changes any number or network addressing information assigned to the Customer, it will endeavour to give the Customer such prior notice as may be reasonably practicable in the circumstances, unless the withdrawal is because of the termination or suspension of the Service in accordance with the Agreement. |
9. PERSONAL IDENTIFICATION NUMBER
| 9.1 |
The Company may allocate a PIN to the Customer and may, at any time, vary the PIN allocated to the Customer. The Company will notify the Customer of a change in the PIN allocated to the Customer where it is reasonably practicable to do so. |
| 9.2 |
Each PIN issued to a Customer is confidential and personal to the Customer and the Customer is responsible for the security of its PIN. |
| 9.3 |
The Customer undertakes to use its PIN in accordance with the reasonable directions given to it by the Company from time to time. The Customer shall notify the Company immediately if the Customer has grounds for believing that any person has discovered or is making use of its PIN without its knowledge or consent, and the Company will allocate a new PIN to the Customer. |
| 9.4 |
If the Service is suspended, withdrawn, restricted or terminated or the Agreement is terminated the Company may withdraw the PIN. |
10. EQUIPMENT
| 10.1 |
The Equipment is and will at all times remain the property of the Company. |
| 10.2 |
The Customer is responsible for the Equipment while it is in the Customer's custody or control, and will be liable to the Company for any loss or damage to the Equipment (except in so far as any such loss or damage is due to the negligent act or omission of the Company). |
| 10.3 |
The Customer shall, and shall ensure that third parties using Customer Services shall:
| (a) |
at the Customer's expense or at the expense of any third party using Customer Services, provide, supply or arrange for the supply of air-conditioning, electricity and other utility services and environmental conditions required by the Company at the Premises or reasonably necessary to operate the Equipment and to support the Service; |
| (b) |
notify the Company immediately of any damage, fault, theft or loss of the Equipment; |
| (c) |
not use or allow any person to use the Equipment for any purpose other than the purpose for which it was provided; |
| (d) |
not alter, tamper with or attempt to repair the Equipment in any way without the Company's prior consent; |
| (e) |
not remove, tamper with or obliterate any identification mark affixed to the Equipment showing that it is the property of the Company nor any other marks belonging to the Company; |
| (f) |
not affix any Equipment to any part of any premises or land in a manner that causes it to become a fixture to those premises or that land; |
| (g) |
not connect any Equipment to any other equipment or service except as expressly authorised by the Company; and |
| (h) |
not use the Equipment in any manner which would interfere with the efficient operation of any telecommunications network or service. |
|
| 10.4 |
The Company will at its discretion repair or replace the Equipment and such repair and replacement will be:
| (a) |
free of charge if required as a result of fair wear and tear or a negligent act or omission of the Company; and |
| (b) |
otherwise invoiced at the Company's standard repair rates. |
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11. ACCESS TO PREMISES
| 11.1 |
The Customer shall, and shall ensure that third parties using Customer Services shall:
| (a) |
ensure that the Company, its representatives and agents have access to the Premises at all reasonable times to:
| (i) |
install, inspect, maintain, repair, replace, remove or recover the Equipment prior to, during or after provision of the Service; |
| (ii) |
inspect any other equipment used in connection with the Service; |
| (iii) |
to determine whether or not the Customer or third parties using Customer Services are engaging in any Unauthorised Activity in relation to use of the Service; and |
| (iv) |
inspect any apparatus including machinery, meters, transformers or fittings which the Company considers is, or may be, causing or likely to cause any interference, impediment or impairment to the Service or the Network; and |
|
| (b) |
provide safe access to the Premises and safe conditions for the Company, its representatives and agents while on the Premises. |
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12. LIMITATION OF LIABILITY
| 12.1 |
To the extent permitted by law:
| (a) |
the Company shall not be liable for any Consequential Loss; and |
| (b) |
conditions and warranties implied by custom, the general law or statute are excluded. |
|
| 12.2 |
To the extent permitted by law the Company's liability under the Agreement or for or in relation to:
| (a) |
any breach of clause 2 is limited at its election to supplying the Service again or paying the cost of supplying the Service again; and |
| (b) |
any damage to property is limited at its election to the repair or replacement of that property or paying the cost of repair or replacement. |
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| 12.3 |
In addition to the limitations under clauses 12.1 and 12.2 and to the extent permitted by law the Company's liability under the Agreement or for or in relation to the performance of the Agreement is limited to:
| (a) |
HK$1,000,000 for any one incident or series of events arising from a single incident or common cause; and |
| (b) |
an aggregate amount of HK$2,000,000 for all liability arising out of or in connection with the Agreement. |
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| 12.4 |
The Customer shall indemnify the Company, its employees and agents against any Loss (including Consequential Loss) which the Company suffers or incurs in connection with the Agreement, including but not limited to Loss resulting directly or indirectly from:
| (a) |
any act or omission (whether or not negligent) of the Customer or any third party; |
| (b) |
any Claim by any person relating to supply of the Service or its use by the Customer or any other person or any delay or failure to provide the Service; |
| (c) |
a breach by the Customer of the Agreement; |
| (d) |
any Unauthorised Activity by the Customer or any third party to whom a Customer Service is provided; |
| (e) |
any Claim by any person or liability of the Company under any Applicable Law in relation to the supply of the Service including in relation to any content transmitted using the Service including any Claim for infringement of any intellectual property right (including copyright or any right in any trade mark or design) or any Claim arising directly or indirectly out of or relating to the use of the Service to carry material of obscene, indecent or defamatory nature; and |
| (f) |
the Company's access to the Premises; |
other than to the extent that it is the result of the wilful breach of the Agreement by the Company. |
| 12.5 |
The Customer shall in any contracts in relation to any Customer Service ensure that it excludes to the fullest extent possible the liability of the Company. |
| 12.6 |
Nothing in the Agreement excludes or restricts a party's liability for death or personal injury resulting from the negligence of that party. |
13. SUSPENSION OR WITHDRAWAL OF THE SERVICE
| 13.1 |
The Company may suspend, withdraw or restrict all or part of the Service at any time until further notice to the Customer if:
| (a) |
the Company has grounds for terminating the Service under clause 14; or |
| (b) |
the Company suspects that Unauthorised Activities have occurred or are occurring in relation to the Service; or |
| (c) |
the provision of the Service would cause the Company to be in breach of any Applicable Law; or |
| (d) |
the Company has a specific right to suspend the Service under the Special Conditions; or |
| (e) |
in the reasonable opinion of the Company, it is necessary to suspend the Service in order for the Company to:
| (i) |
carry out planned maintenance, repair or upgrading of any equipment or facility forming part of the Network and the Company has given the Customer as much notice as is reasonably practicable in the circumstances (which notice may be oral if subsequently confirmed in writing); or |
| (ii) |
protect the integrity of the Network, or to carry out unplanned maintenance, repair or upgrading of any equipment or facility forming part of the Network. |
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| 13.2 |
If Service is suspended, withdrawn or restricted under clause 13.1(e) the Company will endeavour to ensure that there is minimum disruption to the Service. |
| 13.3 |
Without limiting the exclusions or limitations of liability in clause 12, the Company shall not be liable to the Customer nor any third person for any Loss resulting from or in connection with a suspension, withdrawal or restriction of the Service under this clause 13. |
| 13.4 |
The exercise of the Company's right to suspend the Service under this clause is without prejudice to any other remedy available to the Company under the Agreement and does not constitute a waiver of the Company's right to subsequently terminate the Agreement. |
14. TERM AND TERMINATION
| 14.1 |
The Agreement takes effect on the Commencement Date and continues until terminated in accordance with this clause 14. |
| 14.2 |
Either the Company or the Customer may terminate the Agreement by giving the other at least 30 days' written notice. |
| 14.3 |
The Company may immediately terminate the Service or the Agreement without prior notice if:
| (a) |
the Customer is in material breach of the Agreement including the failure to:
| (i) |
pay any amounts owing in accordance with the Agreement; or |
| (ii) |
provide a security deposit in accordance with clause 5; or |
| (iii) |
comply with any of its obligations under clause 6; or |
| (iv) |
comply with any obligation that is identified as a material obligation in the Special Conditions; or |
|
| (b) |
the Company suspects fraud or misuse of the Service or an Unauthorised Activity in relation to use of the Service or a Customer Service by any person, regardless of whether the Customer consented to or had knowledge of such fraud, misuse or Unauthorised Activity; or |
| (c) |
the Company is named as a defendant or threatened with suit in any action or proceeding in which it is alleged that the Service has been used to carry defamatory material; or |
| (d) |
the Customer uses the Service or a third party uses the Service or a Customer Service:
| (i) |
for any improper purpose or for the purpose of sending any unsolicited advertising material or any material of an obscene or indecent nature; or |
| (ii) |
in any manner which is unauthorised, fraudulent, suspicious or illegal, whether under any Applicable Law or otherwise; or |
| (iii) |
in a manner which constitutes an infringement by the Customer or the Company of the rights of any person (including but not limited to copyright and other intellectual property rights and rights of confidentiality) or a violation or infringement of any duty or obligation in contract, tort or otherwise, to any third party; or |
|
| (e) |
in the case of a Customer that is an individual, the Customer dies; or |
| (f) |
in the case of a Customer that is a legal entity (including a partnership) that Customer becomes or there is evidence to show that the Customer is likely to become insolvent or bankrupt, subject to a winding up proceeding, has a receiver appointed, is dissolved or in the process of dissolution, makes any arrangement for the benefit of creditors, or initiates or becomes or there is evidence to show that the Customer is likely to become subject to any other form of insolvency proceeding; or |
| (g) |
the Company is prohibited from supplying the Service under any Applicable Law; or |
| (h) |
the Service has been removed from the tariff schedule of the Company; or |
| (i) |
any of the information provided by the Customer to the Company in applying for the Service is found to be false, inaccurate or misleading in a material respect; or |
| (j) |
any Force Majeure event referred to in clause 17.2 continues for more than 90 days; or |
| (k) |
the Company has a specific right to terminate the Service under the Special Conditions; or |
| (l) |
the Customer has had amounts outstanding on any service or equipment provided to the Customer by the Company or an Affiliate of the Company, under the Agreement, for a period of thirty (30) days or more; or |
| (m) |
there is evidence to show that the Customer is or will be unable to pay its debts as and when they fall due. |
|
| 14.4 |
If the Agreement is terminated by the Customer under clause 14.2 or by the Company under clause 14.3 (other than under paragraph 14.3(g) or (j)) before the Minimum Commitment Period has expired, then the Customer shall, on termination, pay the Company the Cancellation Charge. |
| 14.5 |
The Cancellation Charge is an agreed reasonable pre-estimate of the anticipated losses suffered by the Company if Service is terminated before the expiration of the Minimum Commitment Period. |
| 14.6 |
On termination of the Agreement:
| (a) |
all Charges for use of the Service up to and including on the date of termination and all other amounts owing by the Customer to the Company will become immediately due and payable; |
| (b) |
the Customer shall cease to use the Equipment and Service; and |
| (c) |
the Company is authorised to access the Premises at reasonable times for the purpose of removing the Equipment or terminating the Service. |
|
| 14.7 |
Without limiting the exclusions or limitations of liability in clause 12, the Company shall not be liable to the Customer nor to any third party for any Loss resulting from or in connection with termination of the Agreement under this clause 14. |
15. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
| 15.1 |
The Customer shall keep confidential and shall not disclose to any person any confidential information of the Company without the prior written consent of the Company unless the disclosure is required by an Applicable Law. |
| 15.2 |
The Company does not under the Agreement or as a result of the provision of the Service:
| (a) |
assign any intellectual property right of the Company or any third party to the Customer; or |
| (b) |
grant any licence to the Customer in respect of any intellectual property right of the Company or any third party. |
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16. COMMUNICATIONS
| 16.1 |
A notice, consent or any other communication under the Agreement shall:
| (a) |
be in writing; and |
| (b) |
in the case of a notice, consent or other communication to the Customer, be addressed to the Premises or such other address notified in writing by the Customer to the Company; and |
| (c) |
in the case of a notice, consent or other communication to the Company, be addressed to the person identified by the Company for that purpose and in the absence of such person having been identified its registered office. |
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| 16.2 |
A written communication is deemed to be received:
| (a) |
if by hand delivery, when it is delivered; |
| (b) |
if a letter, three days after posting (seven, if posted to or from a place outside Hong Kong);and |
| (c) |
if a facsimile, at the time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient. |
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| 16.3 |
Communications received by a party outside of normal working hours (being 9:00am to 5:00pm on any business day) will be regarded as being received on the immediately following business day. |
17. GENERAL
| 17.1 |
The Company may amend the terms and conditions of the Agreement at any time in accordance with the Licence. |
| 17.2 |
Notwithstanding any other provision of the Agreement, the Company shall not be liable for any failure to fulfill an obligation under the Agreement if such a fulfilment is delayed, prevented, restricted or interfered with for any reason as a result of a Force Majeure provided that the Company has used its reasonable endeavours to mitigate the effect of the Force Majeure and to carry out its obligations under the Agreement in any other way reasonably practicable. |
| 17.3 |
The Customer shall not assign any of its rights or obligations under the Agreement without the prior written consent of the Company. |
| 17.4 |
The Company may at any time (with or without notice) assign, novate, sub-contract, transfer or otherwise dispose of any or all of its rights, duties or obligations under the Agreement to a third party or appoint a third party to perform any or all of the Company's duties or obligations, or exercise any of the Company's rights, under the Agreement. |
| 17.5 |
Unless otherwise required by the Special Conditions, the Agreement supersedes all previous agreements in relation to the Service and embodies the entire agreement between the parties in relation to the Service. In entering into the Agreement the parties do not rely on any representations or warranties in relation to the Service except as expressly provided in the Agreement. |
| 17.6 |
If there is any inconsistency between these General Conditions, the Special Conditions, the Application and the Service Literature, the inconsistency will be resolved in the following order of preference:
| (a) |
the Special Conditions; |
| (b) |
these General Conditions; |
| (c) |
the Application; and |
| (d) |
the Service Literature. |
|
| 17.7 |
If the Customer includes requirements or information in the Application other than as expressly provided for in the Application it will not form part of the Agreement. |
| 17.8 |
These General Conditions may be translated into Chinese. The English version of these General Conditions will prevail. |
| 17.9 |
The rights, powers, authorities, discretions and remedies of a party under the Agreement do not exclude any other right, power, authority, discretion and remedy. |
| 17.10 |
Any failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on that party by the Agreement does not operate as a waiver of that power or right unless expressed in writing to be a waiver. |
| 17.11 |
Each of the provisions of the Agreement is severable and distinct from the others, and if one or more of such provisions is or becomes invalid, unenforceable or illegal the other provisions will continue to be effective and binding. |
| 17.12 |
The Agreement is governed by the laws of Hong Kong. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Hong Kong. |
18. DEFINITIONS AND INTERPRETATION
| 18.1 |
In the Agreement the following words have the meanings given to them in this clause unless the context otherwise requires:
| Affiliate means, in relation to an entity, any other entity which directly or indirectly controls, is controlled by, or is under common control with, such entity. |
| Agreement means the agreement between the Company and the Customer in respect of the Service comprising these General Conditions, the Application, the description of the Service, the Charges and where applicable, Special Conditions and Service Literature as amended by the Company from time to time. |
| Applicable Law means any law, rule or regulation of Hong Kong or any country (or political subdivision thereof) which is applicable to the Company, the Customer's use of the Service or the provision of any Customer Service to any person; obligations under any telecommunications licence held by the Company, the Customer or any person to whom the Customer provides Customer Services; any lawful determination, decision or direction of a Government Agency in Hong Kong or any country (or political subdivision thereof) which is applicable to the Company or the Customer's use of the Service; and any applicable international convention or agreement. |
| Application means a written application and, where expressly allowed by the Company, a non-written application made by the Customer to the Company requesting provision of the Service to the Customer. |
| Cancellation Charge means the cancellation charge set out in the Charges or if no such charge is specified, means the monthly Rental payable for the remainder of the Minimum Commitment Period that is payable as liquidated damages to the Company on termination of the Agreement prior to expiration of the Minimum Commitment Period. |
| Charges means the charges payable by the Customer to the Company in respect of the Service as published by the Company from time to time. |
| Claim means any claim or cause of action in respect of the Agreement, including but not limited to, in contract (including a breach of warranty), in tort (including misrepresentation or negligence) or under statute. |
| Commencement Date means the date of acceptance by the Company of the Application or such other date agreed by the parties. |
| Company means Hong Kong Telecommunications (HKT) Limited. |
| Consequential Loss of a party means any indirect, special, economic or collateral Loss including loss of profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings or business whether caused by negligence or otherwise and whether arising out of or relating to the Agreement, the Service, or any failure to supply or delay in supplying the Service. |
| Customer means any person including any individual, Government Agency, organisation, corporation or unincorporated body which has applied to the Company for the Service by way of an Application. |
| Customer Service means a telecommunications service, if any, supplied by the Customer to any third party using the Service. |
| Due Date means the date specified in the relevant invoice, or if no such date is specified, the date which is 15 days from the date of the invoice. |
| Equipment means the equipment (if any) provided by the Company to make available the Service to the Customer which may be installed at the Premises excluding any equipment belonging to the Customer or any third party. |
| Force Majeure means anything outside the reasonable control of the Company including but not limited to, industrial disputes of any kind, war declared or undeclared, blockade, disturbance, a natural disaster such as lightning, earthquake, storm, flood, explosion or meteor, law or any power lawfully exercised by a Government Agency, any change in any Applicable Law, inability or delay in granting governmental or other approvals, consents, permits, licenses or authorities, or telecommunications network outage or degradation which the Company cannot reasonably control. |
| Government Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes the Telecommunications Authority. |
| Hong Kong means the Hong Kong Special Administrative Region of the People's Republic of China. |
| Licence means a licence issued by a Government Agency to the Company from time to time authorising the Company to provide the Service. |
| Loss includes loss, loss of revenue, cost, damage, expense, liability and charge. |
| Minimum Commitment Period means the period specified in the Special Conditions or the Charges commencing on the Service Commencement Date or, if no such period is specified, the period of 3 months from the Service Commencement Date. |
| Network means the telecommunications network owned or operated by the Company in accordance with the Licence including all facilities and associated equipment used in, or in connection with, that network. |
| Personal Data means personal data as defined in the Personal Data (Privacy) Ordinance, account information including data set out in the Application and any other Customer information obtained from the Customer, the Network or from another source. |
| PIN means a Personal Identification Number issued by the Company to the Customer to allow the Customer sole and confidential access to the Service. |
| Premises means any premises or place from which the Service is used from time to time. |
| Rental means the periodical Charges payable by the Customer to the Company in respect of the Service. |
| Service means the telecommunications services, including Equipment where applicable, provided by the Company to the Customer and identified in the Application. |
| Service Commencement Date means the date the Company informs the Customer that the Service is made available to the Customer. |
| Service Literature means any brochure, tariff schedule, customer guide, code of practice, device description, instructions or manual issued by the Company from time to time in connection with the provision of the Service. |
| Special Conditions means the special conditions specifically applicable to the Service published by the Company from time to time. |
Unauthorised Activity means:
| (a) |
any act or omission in relation to the Service or a Customer Service that is in breach of any Applicable Law; |
| (b) |
any translation, alteration, modification or deletion (whether through the use of any translation system or device or in any other manner whatsoever) of the addressing information (including the number, code or signal) assigned to each call at the time that call is originated; or |
| (c) |
any activity identified as an unauthorised activity in the Special Conditions. |
|
| USC means any universal service contribution that the Telecommunications Authority determines is to be paid by the Company, the Customer or a user of a Customer Service in relation to the Service or a Customer Service. |
| USC Provider means a person to whom a USC is to be paid as determined by the applicable Government Agency. |
|
| 18.2 |
In the Agreement headings are for convenience only and do not affect its interpretation, and unless the context otherwise requires:
| (a) |
a word importing the singular include the plural and vice versa; |
| (b) |
a word importing a gender includes any gender; |
| (c) |
a reference to a person includes a natural person, any company, partnership, joint venture, association, corporation, authority or other legal entity; |
| (d) |
a covenant or agreement on the part of two or more persons binds them jointly and severally; |
| (e) |
a reference to a party includes its successors and permitted assigns; |
| (f) |
a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, Telecommunications Ordinance and by-laws issued under that statute; |
| (g) |
a reference to a document includes any amendment or supplement to, or replacement or notation of, that document; and |
| (h) |
a reference to the words, "includes", "including" or "example" are references without limitation. |
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