HONG KONG BROADBAND NETWORK LIMITED BROADBAND PHONE

 

TERMS AND CONDITIONS

 

These Terms and Conditions constitute an agreement (the “Agreement”) between Hong Kong Broadband Network Limited (“HKBN”) and the subscriber (“You” or “Your”) of HKBN’s enhanced voice communications services and any related products or services (the “Service”). This Agreement governs both the Service and any equipment used in conjunction with the Service. BY ACTIVATING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND YOU AGREE, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND BECOME BOUND BY ITS TERMS.

 

1.              PROVISION OF SERVICE

 

1.1       The Service is only available where HKBN is able to provide such Service. You acknowledge and agree that HKBN may conduct a preliminary check to determine whether the Service is available in Your area before accepting any subscription of Service from You.

 

1.2       Subject to the discretion of HKBN, HKBN is not required to provide the Service to You where:-

 

(a)                  HKBN has to incur substantial expenses in making available the Service to Your area or Your premises including but not limited to costs incurred in relation to construction work for the connection;

(b)                             Outstanding Charges, Rentals or other applicable charges which remain unsettled by You;

(c)                             Your credit information provided to HKBN is not up to the satisfaction of HKBN;

(d)                             You have not made a deposit in relation to the use of Service and/or Equipment. 

 

1A.      APPOINTMENT OF GROUP COMPANIES AND/OR THIRD PARTY SERVICE PROVIDERS

 

1A.1   HKBN may, at its sole discretion from time to time, assign any of its rights and liabilities under this Agreement to any of its and/or its subsidiaries and associated companies, and any other company which is for the time being a holding company (ultimate or intermediary) of HKBN and/or any subsidiary of such holding company from time to time (“Group Companies”) or to appoint any third party, including without limitation, the Group Companies and/or any service providers, agents, contractors, or any other third parties (including but not limited to billing or collection agencies, credit reference agencies, security agencies, financial institutions engaged by HKBN and any of HKBN’s actual or proposed assignees or transferees) (“Third Party Service Providers”), to provide the Service to You on its behalf or to perform any of HKBN’s obligations or to exercise any of HKBN’s rights under this Agreement.

 

2.                SYSTEM REQUIREMENTS

 

2.1       You shall have subscribed and expressly agree to make available, at Your own costs and expenses, to HKBN at the installation address registered with HKBN (“Installation Address”) a valid, stable and unlimited broadband service. You shall have fulfilled such requirements stipulated by HKBN from time to time to enable HKBN to provide the Service for Your use.

 

2.2       You understand and accept that since the provision of the Service is contingent upon the technology of broadband service and the Internet connection, the Service will be duly affected by factors such as stability of Internet service and the degree of confidentiality. The provision of the Service and the manner in relation to any such provision shall be subject to the sole discretion of HKBN. You acknowledge that HKBN shall not be liable to You in any way for failure of Service. 

 

2.3       The Service is unavailable under a web-log-in broadband technology. If You use broadband service with the Service concurrently, it is Your responsibility and at Your own costs to have (a) multiple logins for xDSL with PPPoE login broadband technology, or (b) multiple IP address for cable modem broadband connection.

 

2.4       HKBN shall not be liable to You or any third party in regard to any consequences or effect on the broadband service and/or speed and/or bandwidth that may be caused by the Service or otherwise.

 

3.         SERVICE LIMITATIONS

 

3.1       Not A Substitute to Traditional Telephone Service. You acknowledge and understand that the Service is not a substitute to traditional telephone service. There are IMPORTANT DIFFERENCES between traditional telephone service and the Service provided by HKBN as set out in this Agreement.

3.2       911 Service Currently Not Supported. You acknowledge and understand that HKBN DOES NOT currently support traditional 911 access to emergency services via the Service. You understand and acknowledge that notwithstanding the Service can be connected to 999 emergency service hotline in the Hong Kong Special Administrative Region (“Hong Kong”), the Hong Kong Police Force Emergency Centre or any relevant entity handling emergency to which such 999 emergency service hotline is connected, the Service does not have the ability by any means to locate Your Installation Address where You utilize the Service to make emergency call.  You agree to inform any household residents, guests and other third persons who may be present at the physical location where You utilize the Service of the non-availability of traditional 911 dialing from Your Service and Equipment and the inability of tracing by the relevant emergency entities of Hong Kong for 999 dialing from Your Service and Equipment.

 

3.3       411 and Operator Services Currently Not Supported. You acknowledge and understand that HKBN DOES NOT currently support 411 or Operator services via the Service and that the Service could only be connected to directory enquiries service in Hong Kong.

 

3.4       Broadband Service Outage. You acknowledge and understand that service outages due to Your broadband Internet service provider will prevent ALL Service from being provided.

 

3.5       Suspension of Service Due to Power Failure. You acknowledge and understand that the Service does not work in the event of power failure. If there is an interruption of the power supply, the Service will not function until power is restored. A power failure or disruption may require You to re-set or reconfigure Equipment prior to using the Service.

 

3.6       Service Outage Due to Suspension of Your Account. You acknowledge and understand that suspension of Your account as a result of unsettled billing issues will suspend HKBN’s provision of Service at HKBN’s sole discretion.

 

3.7       Other Service Outage. You acknowledge and understand that if there is a service outage for any reason, such outage will cause a suspension of the provision of Service.

 

3.8       Lifeline Device. You acknowledge and undertake that You WILL/ SHALL NOT use the Service for connecting to and/or applying for the “Lifeline Device” or any device of a similar nature. “Lifeline Device” means a medical alarm or any other device for an elderly, infirm or invalid to summon assistance in the event of an emergency without having to dial manually the telephone number of the emergency service. 

 

4.         TERM OF SERVICE

 

4.1       The Service is offered on a monthly basis at a monthly fee (“Monthly Fee”) for the Plan subscribed by You (“Plan”) as stated in the “BROADBAND PHONE” Service Registration Form (“Registration Form”). Subsequent terms of this Agreement shall be renewed automatically on a monthly basis without further action by You unless You give HKBN a written prior notice for termination at least 15 days prior to the end of the monthly term in which the notice is given. Termination will take effect immediately following the expiration of the said 15-day notice period (“Service Termination Date”) and You shall pay for all accrued Charges as of the Service Termination Date. No written confirmation will be given by HKBN upon such termination.  Should the Equipment is provided on a rental/loan basis, You shall return the Equipment to HKBN at a specified location designated by HKBN within 15 days from the Service Termination Date and the deposit for the use of Equipment will be returned to You subject to Clause 5.8 herein.

 

4.2       Upon Your subscription of the Service but before the date of Service activation, HKBN reserves all rights to charge You a handling charge as shall be determined by HKBN from time to time for each and every Service that You request to be withdrawn from the activation of Service.

 

5.         USE OF SERVICE AND EQUIPMENT

 

5.1       The Broadband Phone and its accessory device, including but not limited to “Broadband Phone Box”, “Broadband Phone Adaptor” and “Broadband Phone Cable(s)” (including “CAT.5 Patch (RJ45)”), shall be collectively referred to as the “Equipment”. The Equipment is provided on a rental/loan basis or sold to You or by other means in order to enable You to use the Service.

 

5.2       You understand and accept that the Service and the Equipment must only be used at the Installation Address.

 

5.3       If You remove the Equipment from the Installation Address to another country, You do so at Your own sole risk, including the risk that such activity violates local laws in the country where You do so. You are liable for any and all such use of the Service and/or Equipment by Yourself or any person making use of the Service and/or Equipment provided to You and agree to indemnify and hold HKBN harmless against any and all liability for any such use. Should the removal of the Equipment violate any export control law or regulation, You shall be solely for such violation and agree to indemnify and hold HKBN harmless against any and all liability for such violation. You understand and accept that if the Service and Equipment are used in places other than the Installation Address, HKBN reserves the right to terminate the provision of the Service and demand for the return of the Equipment.

 

5.4       If You have subscribed the Service for residential account only, the Service and Equipment are provided to You as a residential user, and only for Your personal, residential, non-business and non-professional use.  This means that You are not using them for any commercial or profit-making or non-profit activity, including but not limited to home office, charitable, business, sales, telemarketing or any other activity, that would be inconsistent with normal residential usage patterns.  You agree that Your use of the Service and/or Equipment for any abovementioned purpose will obligate You to pay HKBN’s higher rates for commercial service on account for all periods.  HKBN reserves the right to immediately terminate or modify the Service if HKBN determines, at its sole discretion, that such Service is being used for non-residential or commercial use.

 

5.5       If You have subscribed to HKBN’s business service, the Service and Equipment are provided to You as a business user. This means that You are not to resell or transfer the Service or Equipment to any other person for any purpose without express written permission from HKBN in advance. HKBN reserves the right to immediately terminate or modify the Service if HKBN determines, at its sole discretion, that the Service is being used for any of the aforementioned activities.

 

5.6       Unless otherwise provided, You shall:-

 

(a)                  use the Service and Equipment only for lawful purposes and according to this Agreement;

(b)                  use the Equipment properly and in accordance with the instructions provided by HKBN in order to be entitled to the maintenance service provided by HKBN. Depending on the circumstances, HKBN may carry out repair or cause replacement of the Equipment;

(c)                  keep the Equipment in good condition while it is in Your custody;

(d)                  not or shall not allow any other person to open up or tamper with the Equipment in any manner including, without limitation, any repair, alteration, disassembling, removal of any part or component or electronic serial number or the identifier of the Equipment, or to perform a reset of the Equipment, or use it for anything HKBN does not authorize in advance in writing;

(e)                  not or shall not allow any person interfere, modify, enhance, adapt, translate, disassemble, reverse translate, decompile the software installed in the Broadband Phone Box or in any way to decode, attempt to reverse engineer or make any copies thereof;

(f)                   not permit or cause the Equipment to be repaired, serviced or otherwise attended to except by an authorized representative or agent of HKBN;

(g)                  permit HKBN or its agent to inspect, test and maintain the Equipment at all reasonable times and on reasonable notice;

(h)                  comply with directions given by HKBN from time to time in relation to modifications required to any apparatus at the Installation Address or such other action as necessary to eliminate any interference, impediment or impairment to the Service or the Network;

(i)                   notify HKBN immediately if the Equipment is lost or stolen while it is in Your custody and indemnify the costs of the Equipment unless the Equipment is sold to You;

(j)                   acknowledge that HKBN has the absolute right and ownership of the Equipment provided to You unless the Equipment is sold to You;

(k)                  acknowledge that HKBN retains all ownership and intellectual property rights to the Service which are embodied in hardware, software, documentations, manuals, product, support and employee, expertise or anything licensed to or developed by HKBN and delivered to You in connection with the provision of the Service in whatsoever manner and shall indemnify HKBN against all liabilities, claims, demands, actions, costs, damages and loss arising out of the breach or non-performance of the terms and conditions herein;

(l)                   not remove the Equipment and use the Service away from Your Installation Address; and

(m)                not use or connect or apply whatsoever the Lifeline Device through or to the Service.

 

5.7       HKBN reserves the right to terminate the Service immediately and without advance notice if HKBN, at its sole discretion, has reasonable grounds to believe and determine that You have violated any of the provision under Clause 5.6.  In this connection, You shall be responsible for the full month’s Charges to the end of the current term, including all unbilled Charges, all of which immediately become due and payable.

 

5.8       Unless You have purchased the Equipment, (i) You shall pay a deposit and monthly rental fees for the Equipment, (ii) You agree that the Equipment shall at all times remain the property of HKBN, and that You have no right, title or interest therein; (iii) the rental/loan of the Equipment shall be terminated upon the termination of the Service; and (iv) You acknowledge that HKBN reserves the right to terminate the rental/loan of the Equipment to You at any time and for whatever reasons.

 

5.9       In the event the Service is terminated and the Equipment is provided to You on a rental/loan basis, You must return the Equipment in good working conditions and in its complete set to HKBN within 15 days of Service Termination Date. In case of any non-return of the Equipment by the expiration of the said 15-day period or in case of any loss or damage to the Equipment or any part thereof, You authorize HKBN to charge the value amount of the Equipment to Your account immediately without further notice and You shall be responsible for such payment. Should You request HKBN to perform an on-site service at the Installation Address for collecting the Equipment, HKBN will use its endeavours to make arrangement within 2 weeks or other reasonable time upon receipt of Your written notice and will charge You for CAN$30 per visit or any other amount as HKBN shall deem appropriate from time to time.

 

5.10     In the event of malfunctioning, breakdown or damage to and of the Equipment, HKBN shall not be liable to repair or replace the Equipment or any part or component thereof if such event arises from or is occasioned by fair wear and tear, any misuse, negligence, willful damage, or damage on Your part or Your agents or employees, by breach of the terms herein, any accident beyond the control of HKBN, force majeure or any use of the Equipment outside the Installation Address at which You are situated.

 

5.11     It shall not be HKBN’s responsibility to repair or carry out any maintenance or replacement work if the Equipment or any part thereof is beyond repair for whatsoever reasons.

 

5.12     If You receive the Equipment from HKBN or its agents or any third party and the Equipment includes a limited warranty at the time of receipt, You must refer to the separate warranty document provided with the Equipment for information on the limitation and disclaimer of certain warranties.  Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.  Such warranty shall not apply to any defect or failure other than inherent or manufacturer’s defect and shall not apply to scratch, damage, defects caused by damage in transit, mishandling of You, opening of and tampering with the Equipment by unauthorized technicians or persons and beyond the warranty period. If Your Equipment did not include a limited warranty from HKBN at the time of receipt, You agree that You accept HKBN’s Equipment on an “as is” basis and that You are not entitled to replacement or refund in the event of any defect. Unless otherwise stated, HKBN will provide a limited warranty on the Equipment as to manufacturing defects only for a period of one year from the date of purchase.

 

5.13     OTHER THAN WARRANTIES AS TO THE EQUIPMENT SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE EQUIPMENT, HKBN MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE EQUIPMENT OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET YOUR REQUIREMENTS.  THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE EQUIPMENT.

 

6.         PROVISION OF TELEPHONE NUMBER AND NUMBER PORTABILITY

 

6.1       Upon subscription of the Service, HKBN will provide You a Hong Kong telephone number with an area code of 852 (“Telephone Number”). This means that the Telephone Number enables You to make and receive calls to and from Hong Kong as if You were making a local call in Hong Kong.

 

6.2       You acknowledge and understand that should You use the Equipment to make calls to a number in Canada or places other than Hong Kong, such call will not be counted against the air time included in the Plan You have subscribed and You will be charged at the applicable rates for long distance call of that destination.

 

6.3       Upon termination of the Service, HKBN shall have the right to assign the Telephone Number previously provided to You to any other customers.

 

6.4       As stated in Clause 5.2 and 6.1 above, You understand and accept that the Service and the Equipment must only be used at the Installation Address and the number provided to You is a Hong Kong telephone number. You understand that the Service does not support the number porting to Your local operators except Hong Kong operators. If You decide that You do not need the Service and would like to port out the Telephone Number to other operators in Hong Kong, You are encouraged to contact our Customer Service Hotline for such number porting arrangement before so doing. Any of such porting out of the Telephone Number would mean that You would terminate the Service and thus You will be responsible for the full month’s Charges to the end of the current term, including without limitation unbilled charges; all of those said charges shall become due and payable immediately.

 

7.         FRAUD

 

7.1       You agree to notify HKBN immediately, in writing or by calling the HKBN customer services hotline at 1-866-787-8897, if the Equipment is stolen or if You become aware at any time that Your Service is being stolen or fraudulently used. HKBN shall charge You for such costs for replacement of the lost or stolen Equipment unless the Equipment is sold to You. When You call or write to HKBN, You must provide Your account number and a detailed description of the circumstances of the Equipment theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of Your Service by HKBN and You may be held liable for additional charges to HKBN.

 

7.2     You shall be liable for the Monthly Fee in relation to the use of the Service using the Equipment stolen from You and any and all stolen Service or fraudulent use of the Service during the term of the Service.

 

8.         CREDIT AND PERSONAL INFORMATION

 

8.1       You consent and agree that HKBN and the Group Companies have the right to check Your credit rating from time to time.

 

8.2       You agree that You will give HKBN prior written notice of any changes to Your billing information, including but not limited to Your new address and contact information.

 

8.3       You consent to the receipt and provision of account information from and to credit grantors, credit bureaus and suppliers of services.  HKBN respects Your personal information shall adhere to the Group Companies’ Privacy Policy when handling Your personal information, so far as is applicable.

 

8.4       You acknowledge and consent that HKBN may have to engage the Group Companies and/or Third Party Service Providers, whether within or outside Hong Kong or Canada, for the provision of the Service. You acknowledge and consent that HKBN may, without giving You any prior notice, provide Your personal information to such Third Party Service Providers and/or the Group Companies, whether within or outside Hong Kong or Canada, for the purposes of provision of Service, credit verification, administration, marketing promotions, data processing, customer services or otherwise to perform obligations or enforcing rights under this Agreement, or any other purposes incidental to or in contemplation thereof. You acknowledge and consent that Your personal information maybe processed and stored in the countries in which the Third Party Service Providers or the Group Companies are located, whether within or outside Hong Kong or Canada. HKBN endeavours to take all reasonably practicable steps to ensure that Your personal information is transferred to such parties in a secure manner.

 

8.5       You acknowledge and consent that HKBN, the Third Party Service Providers and the Group Companies may provide or disclose Your personal information to the government, court of laws, law enforcement authorities and/or other legal or regulatory authorities, departments or commissions of any jurisdiction (“the Authorities”), without giving You any prior notice, upon the request from the Authorities or as required by applicable laws or regulations or in any other situations as HKBN, the Third Party Service Providers and/or the Group Companies deem appropriate for the purposes of compliance with applicable laws and court orders, investigation or prevention of crimes or for any other purposes as HKBN, Third Party Service Providers and/or the Group Companies deem necessary.

 

8.6       You agree that HKBN shall provide Your personal information to Hong Kong Police Force or any relevant entity which handles emergency upon their requests without giving You any prior notice in situations as HKBN deems appropriate. You shall notify HKBN in writing for change of Your Installation Address and cause Your Installation Address to be updated in HKBN’s record, failing which, You run the risk that Your changed Installation Address cannot be traced by HKBN when any emergency call is made and HKBN shall assume no liability for any consequence in connection with such failure caused by You.

 

9.         CHARGES AND BILLING

 

9.1       Monthly Fee and rentals for the Equipment (“Rental”) shall be payable on a monthly basis from the date of Service subscription in advance and other applicable charges are payable when billed. Monthly Fee, Rental and other applicable charges, which are collectively referred to as “Charges”, shall be calculated in accordance with the charges stated in the Registration Form. You shall pay the Charges to HKBN in full by the due date as stated in the invoice (“Due Date”) (without any deduction, set-off or withholding of any amount) for the Service and Equipment furnished to You. All payments in respect of the Charges are non-refundable and non-transferable.

 

9.2       You acknowledge and understand that all calls made and/or received, and/or other items which HKBN deems appropriate from time to time are calculated according to the date and time of Hong Kong.

 

9.3       Under normal circumstances, HKBN will issue an invoice for the payment of the Monthly Fee and Rental every month. If You have not fully settled any invoice by the Due Date, HKBN reserves the right to charge interest on any outstanding amount at a monthly compound rate of 1.5 percent per month (19.56 percent per annum) or such rate as permitted by applicable law.

 

9.4       Air time included in the Plan is provided on the basis that all calls made via the use of the Service are to a landline or mobile phone of Hong Kong. Any additional air time used by You on top of those included air time shall be calculated according to the rates schedule as stipulated for the relevant Plan. For the avoidance of doubt, any calls made from the Equipment to places (including Canada) other than Hong Kong will not be included in the Plan and will be charged at the applicable HKBN long distance call rates for that destination.

 

9.5       Administrative fee of CAN$15 will be charged for any payments returned for non-sufficient funds.

 

9.6       Questions concerning any invoice must be brought to HKBN’s attention within 15 days of the invoice date. Otherwise, the invoice shall be deemed to be accepted by You.

 

9.7       HKBN may impose a credit limit for Your account as determined by HKBN from time to time. Should any Charges exceeds such credit limit, HKBN shall be entitled to suspend or terminate the provision of the Service in whole or in part to You and/or to charge all outstanding Charges against Your credit card account registered with HKBN and/or You must pay immediately any amount exceeding the credit limit.

 

9.8       HKBN may charge Your outstanding balance which remains unpaid 15 days after the invoice date to the Credit Card account registered with HKBN.

 

9.9       You are responsible for and shall pay any applicable federal, state, provincial, municipal, local or other government sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Your subscription or use or payment for the Service or the Equipment.  Such amounts are in addition to payment for the Service or Equipment. If You are exempt from payment of such taxes, You shall provide HKBN with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date HKBN receives such certificate.

 

9.10     In case of disputes over any usage of the Service, the Charges or calls made with the Equipment, HKBN’s decision based on its usage records shall be final and binding on You.

 

10.       SUSPENSION OR TERMINATION OF SERVICE

 

10.1     HKBN does not warrant or guarantee the Service to be continuous or uninterrupted throughout the term of the Service. You accept that the Service and the Equipment are provided on an “as is” and/or available basis. You accept that the provision of the Service is contingent upon the reliability of the Internet.

 

10.2     You understand and accept that the Service will be failed, interrupted, delayed or suspended in case of power failure or such any other situation beyond HKBN’s reasonable control. In such situation, calls may be temporarily not able to be connected to, including without limitation, emergency number of Hong Kong through the Service. HKBN makes no warranty as to the quality and availability of the Service and accepts no legal liability in relation thereto. HKBN shall not in any way be held liable for any loss and damage arising out of such failure, interruption, delay and suspension directly or indirectly.

 

10.3         HKBN reserves the right to suspend or discontinue furnishing the Service, cancel Your account and/or terminate Your Service, at any time at its sole discretion without notice and without limiting any other remedies available to HKBN for reasons including but not limited to:-

           

(a)                  any outstanding Charges payable by You remains unpaid 15 days after the Due Date; or

(b)     the event that You become or is threatened to be the subject of bankruptcy, winding up or receivership proceedings; or

(c)      Your outstanding Charges exceeding the credit limit established from time to time by HKBN; or

(d)     Your breach of any terms of this Agreement; or

(e)                  HKBN being suspicious of any fraud or misuse of the Service or any unauthorized activity in relation to the use of the Service by any person; or

(f)                   HKBN being prohibited from providing the Service under any applicable law or regulation or in accordance with any determination or decision made by any court or telecommunication authority including but not limited to Canadian Radio-television and Telecommunications Commission or authority of competent jurisdiction; or

(g)                  Record of abnormal traffic pattern (at the sole discretion of HKBN) about the use of our Service.

 

10.4     If HKBN discontinues the provision of the Service generally or terminates Your Service at its discretion without a stated reason, You will only be responsible for Charges accrued through the date of termination, including a pro-rated portion of the final month’s Charges. If Your Service is terminated for any stated reason, You will be responsible for the full month’s Charges to the end of the current term, including without limitation unbilled charges; all of those said charges shall become due and payable immediately.

 

11.       VALUE ADDED SERVICE

 

11.1     You understand and agree that value added service which includes without limitation Caller Display, Call Waiting and 3-Way Calling are subject to availability and discretion of HKBN.

 

12.       LIMITATION OF LIABILITY

 

12.1     You are liable for any and all use of the Service and/or Equipment by any person making use of the Service or Equipment provided to You and agree to indemnify and hold harmless HKBN and the Group Companies against any and all liability for any use that does not comply with this Agreement.

 

12.2     You acknowledge and agree that HKBN and the Group Companies shall not be liable to You for:-

 

(a)        any fault in other equipment or device You use;

(b)                 any fault in the Equipment whether or not caused by You tampering with it, Your negligence or failure to follow HKBN’s instructions;

(c)        Your use of Equipment with any other equipment or device that HKBN does not in advance authorize in writing;

(d)        Your use of Equipment away from the Installation Address.

 

12.3     To the extent permitted by law, HKBN, the Group Companies and any Third Party Service Providers, together with their respective directors, employees or agents expressly disclaim any liability for:-

 

(a)           any damage to or loss of data, voice or other information arising from Your use of the Service or Equipment;

(b)                 any claim based on contract, tort or otherwise for any direct or indirect loss of revenue, profits or any consequential loss  whether of an economic nature or any such loss which You suffer as a result of any error, inaccuracy introduced into Your modem or other devices by, through or in connection with the use of the Service or Equipment;

(c)                  any claim relating to the Service and/or any content accessible through the Service, or Equipment supplied, provided, sold or made available by or through the Service (or any failure or delay to so supply, provide, sell or make available);

(d)                 any disruption or suspension or degradation of the Service or Equipment or any part thereof;

(e)                  any damage which is attributable to an event or circumstance beyond HKBN’s control i.e. “Force Majeure Event”. A “Force Majeure Event” includes but is not limited to acts of God, war, civil disobedience, explosion, fire, flood, governmental action, legislation not in force at the time of this Agreement, restraints imposed by government or any other regulatory authorities, labour disputes, trade disputes or delays of third parties over which HKBN has no control.

 

12.4      HKBN’s liability for any interruption, delay, error or defect in transmission, equipment or service provided to You under this Service or in any way arising out of  this Agreement and any related agreements shall be limited to an amount equivalent to HKBN Charges incurred by You for the period of Service during which such circumstances occurred.

 

13.       INDEMNIFICATION

 

13.1     You agree to indemnify, defend and hold harmless HKBN and the Group Companies, its affiliates, directors, employees, agents, licensors and suppliers from and against all claims, losses, expenses, damages and costs, including reasonable legal fees, resulting from any breach of this Agreement by You. The provisions of this section shall survive termination of this Agreement.

 

13.2     Without prejudice to the foregoing, You acknowledge and agree that You shall be fully liable and shall indemnify HKBN for any expenses and liability incurred under all applicable laws and regulations (including, without limitation, the installation of backup electricity supply for the Service) arising from or incidental to a breach of Clause 3.8 hereinabove.

 

14.       NO WARRANTIES ON SERVICE

 

14.1     HKBN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS.  WITHOUT LIMITING THE FOREGOING, HKBN DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION.  NEITHER HKBN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO YOUR TRANSMISSION FACILITIES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF, YOUR DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF HKBN OR ITS SERVICE PROVIDER’S OR VENDOR’S NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR EQUIPMENT, IF ANY, BY HKBN OR HKBN’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.

 

15.       ASSIGNMENT

 

15.1     You shall not in any event assign, resell, sublet, license or transfer the Service to another party without the prior written consent of HKBN whether or not there is any monetary consideration. HKBN reserves the right to assign, transfer or otherwise deal with all or part of its rights or duties under this Agreement without prior notification to You.

 

16.       GOVERNING LAW AND JURISDICTION

 

16.1     HKBN reserve the right to have final decision on any dispute regarding the terms and conditions herein stated.

 

16.2     This Agreement shall be governed by and construed in accordance with the laws of Hong Kong.

 

16.3     Without prejudice to Clause 16.2 hereinabove, You agree to observe and comply with all laws, regulations and government orders and directions of applicable jurisdictions, including without limitation, Canada, in relation to the Service and Equipment.

 

17.       COMPLIANCE

 

17.1     You shall at all times fully comply with all legal and regulatory requirements applicable to the use of the Service and Equipment and shall observe all instructions or guidelines imposed by HKBN from time to time. You further undertake not to use or allow others to use the Service or Equipment for any purpose which HKBN considers improper, immoral, defamatory, fraudulent or otherwise lawful.

 

18.       SEVERABILITY

 

18.1     If any provision of this Agreement is determined to be invalid or unenforceable, that provision shall be deemed severable from the other provisions. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. 

 

19.       WAIVER

 

19.1     The terms and provisions of this Agreement  may only be waived in writing signed by HKBN.

 

19.2     No failure by HKBN to insist upon Your performance of any obligation in this Agreement  will constitute a waiver of the obligation.

 

20.       CONFIDENTIALITY

 

20.1     The Service utilizes, in whole or in part, the public Internet and third party network to transmit voice and other communications. HKBN shall not be liable to You for any lack of privacy which may be experienced with regard to the Service or with regard to the disclosure or transfer of Your personal information to any third party in situations stipulated in this Agreement. However, HKBN shall endeavour to take all reasonably practicable steps to ensure that Your personal information are transferred to such third parties in a secure manner as HKBN deems fit.

 

21.       AMENDMENTS

 

21.1     HKBN reserves the right to amend the provisions and terms and conditions in this Agreement by giving You a reasonable notice as determined by HKBN pursuant to Clause 25.1. Should there be any dispute arising in connection thereto, the determination of HKBN shall be final and conclusive.

 

22.       ENTIRE UNDERSTANDING

 

22.1     This Agreement constitutes the entire agreement and understanding between HKBN and You and supersedes all prior arrangements or understandings, whether oral or written, between HKBN and You relating to the subject matter hereof.

 

23.       SURVIVAL

 

23.1     Any provisions of this Agreement which by its nature extend beyond termination shall survive such termination.

 

24.       PROCESSING AGENT

 

24.1     HKBN shall have the rights to maintain a representative for service of process outside Hong Kong. Any notice, communications, demands and/or court documents whatsoever shall be deemed duly served to and accepted by HKBN if the same have been delivered to such possessing representative as authorized and appointed by HKBN from time to time.

 

25.       OTHERS

 

25.1     Any notices or communication by HKBN to You shall be sufficiently given if addressed to You by hand delivered, by post, facsimile, email, posting on web-site ([www.ctinets.on.ca] or other web-site as specified by HKBN from time to time) or by other transmission method as HKBN deems fit and such notices or communication shall be deemed to have been given and received by You.

 

25.2     Should You use the Service in subscribing for other service(s) provided by HKBN, You agree to observe and comply with other terms and conditions as specified by HKBN from time to time.