1. Interpretation and Definitions
1.1
These terms and conditions are binding on all users of the
Service and constitute a contract between the Provider and
each user.
1.2
Any reference to the Conditions shall mean these terms and
conditions and include any supplement, amendment and variation
thereto to be made by the Provider from time to time.
1.3
The parties hereto acknowledge and agree that the Provider
may amend, vary, add, delete, supplement or modify any part
or the whole of the Conditions from time to time without
notice.
1.4
Unless the context otherwise requires :-
1.4.1
a reference to any statute or statutory provision shall
be construed as a reference to that statute or provision
as amended extended consolidated or re-enacted (whether
before or after the date hereof and whether with or without
modification) from time to time or any former statutory
provision or rule of law which such statute or statutory
provision has replaced or modified and shall include any
order regulation instrument or other subordinate legislation
made under the relevant statute;
1.4.2
the masculine gender shall include the feminine and neuter
gender and the singular number shall include the plural
number and vice versa and references to persons shall
include companies, sole proprietorships, partnerships
and other bodies corporate;
1.4.3
the expression "the Provider" shall, where the Conditions
permits, include its agents, servants, sub-contractors,
successors, assigns and nominees;
1.4.4
the expression "the Operator" shall, where the Conditions
permits, include its subsidiary or holding company (as
within the meanings set out in the Companies Ordinance
of Hong Kong) of Hutchison Whampoa Limited, any subsidiary
of such holding company and any company in which Hutchison
Whampoa Limited or any holding company or subsidiary of
Hutchison Whampoa Limited shall hold at any time 20% or
more of the issued share capital or over which it exercises
substantial management control.
1.5
The headings herein are inserted for convenience only and
shall not effect the construction of the Conditions.
1.6
If at any time any provision of the Conditions is or becomes
illegal, invalid or unenforceable in any respect under the
law of any jurisdiction, neither the legality, validity
or enforceability in that jurisdiction of any other provision
of the Conditions, nor the legality, validity or enforceability
under the law of any other jurisdiction of that or any other
provision of the Conditions, shall be affected or impaired.
Notwithstanding the foregoing, the parties hereto shall
thereupon negotiate in good faith in order to agree the
terms of a mutually satisfactory provision to be substituted
for the provision so found to be void or unenforceable.
1.7
The following terms shall have the following meanings, unless
the context otherwise requires:-
"Contents" means any datum, content, software, information
or material to be provided by the Provider as may from
time to time be varied, supplemented by the Provider which
is contained or to be contained in the Provider's WAP
Site;
"Hong
Kong" means Hong Kong Special Administrative Region of
the People's Republic of China;
"Operator"
means Hutchison Telephone Company Limited;
"Mobile
Devices" means any mobile telecommunication device or
mobile internet protocol device;
"Network"
means the GSM and CDMA public telecommunication networks
and systems of the Operator through which the Service
are made available;
"Parties"
means the Provider and the Users;
"Provider" means Smart Talent Holdings Limited;
"Service"
means services provided to the User enabling him to gain
access to the Contents through the Network by using Mobile
Devices;
"User"
means any user of the Service whether subscription thereof
has been made or not; "WAP" means Wireless Application
Protocol;
"WAP
Gateway" means a gateway for Mobile Devices using WAP
to gain access to the Internet; "WAP Site" means a website
written in WML format which can be accessed by using WAP
technology;
"WML"
means Wireless Mark-up Language, a programming language
for WAP technology.
2.
Scope of the Contents and the Service
2.1
The parties agree that the Provider shall provide the Service
and shall have the absolute discretion to decide on the
nature and scope of the Contents and the frequency of updating
of the Contents and may amend, vary, add, delete, supplement
or modify any part or the whole thereof without notice to
the User.
2.2
The Provider and/or the Operator shall have the absolute
discretion to decline, disapprove or reject any subscription
of the Service by any person without giving any reason.
2.3
The Provider expressly reserves its rights at all times
to expand or reduce the scope of the Service and/or vary
the charges thereof and/or introduce new charges for any
new services provided to be payable by the User without
notice to the User.
2.4
The Provider expressly reserves its rights at all times
to deactivate or suspend all or any of the Services thereof
without notice to carry our system maintenance, upgrading,
testing and/or repairs. No credit or refund is available
in respect of any time when all or any of the Services is
deactivated, suspended or down.
3.
Obligations of the Provider
3.1
The Provider agrees to :-
3.1.1
use its reasonable endeavours to provide the Contents
for access by the User through the Operator's WAP Gateway;
3.1.2
provide the Contents for access by the User through the
Operator's WAP Gateway.
4.
Obligations of the User
4.1
The User shall comply with all the Conditions, other terms
and conditions, practices, principles, rules, and policies
issued by the Provider and/or the Operator and all applicable
laws and regulations, directives and codes of practice issued
by the government and relevant authorities in any jurisdiction
where the Service are being used by the User.
4.2
The User shall pay the Provider and or its agents including
the Operator all subscription fee, service charges, fees,
late charges, interest in a timely manner.
4.3
The User shall submit true and complete information including
personal data to the Provider and/or the Operator and shall
notify the Provider and the Operator promptly in writing
of any changes to such information as provided by the User
in his subscription of the Service and whatsoever information
requested by the Provider and/or the Operator.
5. Representations, Warranties and Undertakings by the
User
5.1
The User represents, warrants and undertakes that he shall
indemnify and keep the Provider and the Operator and their
respective officers, agents, servants and sub-contractors
indemnified against any action, liability, cost, claim (including
any third party claims), loss, damage, proceedings, expense
(including legal costs on solicitor and own client basis)
suffered or incurred by the Provider and the Operator and
their respective officers, agents, servants and sub-contractors
in any way arising from :-
5.1.1
any breach by the User of any of his obligations, representations,
warranties or undertakings hereunder; and
5.1.2
any claims arising from any act alleged to be illegal,
claims for defamation, infringement of intellectual property
rights, damage to computer database, loss of data or distribution
of obscene or offensive material as a result of the use
of the Service and/or the Contents by the User.
5.2
The User expressly agrees and acknowledges that:-
5.2.1
the Operator shall not be a party to any transaction between
the User and the Provider, and all aspects of such transactions
including, but not limited to, purchase terms, payment
terms, warranties, guarantees, maintenance, and delivery
are solely between the User and the Provider;
5.2.2
the Operator provides no guarantees or warranties, express
or implied, regarding the quality, correctness, accuracy
or completeness of the Contents available through the
Operator or the accuracy of any representations of the
Operator;
5.2.3
guarantees and warranties, if any, are directly between
the Provider and the User; and
5.2.4
the Operator shall not be liable in any manner whatsoever
for any loss or damages arising out of the User's transactions
with the Provider.
5.3
The User agrees and acknowledges that the records of transaction
and billing of the Operator are true and accurate in all
aspects and shall be binding on the User save and except
manifest errors.
5.4
The User expressly agrees and acknowledges that all information,
whether personal or otherwise, provided by the User in relation
to the use of the Service may be used by the Provider and/or
its agents and/or servants and/or business partners and/or
sponsors and/or sub-contractors for any lawful purpose including
without limitation communication, provision of information,
statistical analysis, marketing and promotion.
5.5
The User agrees and acknowledges that nothing contained
in the Contents or the Service shall be construed as or
held out to be financial advice or professional service.
5.6
The User agrees and acknowledges that any opinion expressed
by any analyst or other persons in the Contents or the Service
shall be their own opinion and shall not be attributable
to the Provider.
5.7
The User represents, warrants and undertakes that he shall
not use the Service to circulate, publish, transmit, distribute
any unsolicited promotion or any content that is seditious,
obscene, defamatory, indecent, threatening, offensive, liable
to incite racial hatred, discriminatory, menacing or in
breach of confidence.
5.8
The User represents, warrants and undertakes that he shall
not crack, hack, break into, access or use or attempt to
crack, hack, break into, access or use any part of the Service,
the Contents and/or any data areas on the WAP Site, the
WAP Gateway, the Network, the servers of the Provider and/or
the Operator for which the User has not been expressly authorized
by the Provider and the Operator.
5.9
The User represents, warrants and undertakes that he shall
not perform or cause to perform any destruction, interference,
spamming, distribution of viruses, trojan horses, worms,
time bombs, cancel bots and any other contaminating or destructive
properties to the WAP Site, the WAP Gateway, the Network,
the servers of the Provider and/or the Operator.
6.
Intellectual Property
6.1
Nothing herein shall give the User any right in respect
of any trade marks or trade names or logos or any other
intellectual property right of any nature in or in relation
to the Service or the Contents or the goodwill of the Provider
and/or the Operator.
6.2
Nothing contained in the Contents may be reproduced by the
User in any form by any means without the prior approval
of the Provider.
7.
Non-Warranties
7.1
The Provider and/or the Operator makes no warranties, representations
or undertakings to the User as to the Contents or the Service
or the WAP Site:-
7.1.1
that the Service or the Contents or the information provided
in the WAP Site are accurate, true, correct, reliable,
complete or punctual;
7.1.2
that the WAP Site or any Contents can be duly stored or
transmitted from or to, or received by, the User through
the Service;
7.1.3 that they will not contain any contaminating or
destructive properties;
7.1.4
that they will not corrupt or otherwise destroy any data
or software contained on the WAP Gateway or Network or
any Mobile Device;
7.1.5
that they will not in any way disrupt or interfere with
any service provided by the Operator to other users through
the WAP Gateway or Network;
7.1.6
that the Service or the Contents or the information provided
in the WAP Site will not be illegal or unlawful and will
not be in breach of any applicable law or code in any
jurisdiction;
7.1.7
that nothing contained within the Contents or the WAP
Site is obscene, offensive or defamatory against any person
or would give rise to any claim (whether in contract,
tort or otherwise) by any person; and
7.1.8
that the use of the Service or the Contents or the information
provided in the WAP Site in accordance with the Conditions
by the User hereunder will not breach any law or regulation
or infringe any rights of any third party in any jurisdiction.
8.
Limitation of Liability
8.1
All conditions, warranties, responsibilities and liabilities
in relation to the provision of the Service and/or the Contents
(including without limitation title, fitness for any purpose,
merchantability, standard of quality or performance or accuracy
of the Service and/or the Contents) are excluded to the
extent permitted by law in any jurisdiction unless otherwise
specified herein.
8.2
The Provider and/or the Operator expressly disclaims any
warranty, responsibility or liability that the Service or
the Contents will be accurate, update, uninterrupted, error-free
or free of any contaminating or destructive properties.
8.3
The Provider and/or the Operator shall not be liable to
the User or any party for any cost, expense, loss or damage
arising from any incompleteness, inaccuracies, error, omission,
misstatement or delay of the Service or the Contents or
the WAP Site or their unfitness for any purposes or any
failure of any part of Service or the Contents or the WAP
Site to be duly stored or transmitted from or to, or received
by, the User through the Service.
8.4
The Provider and/or the Operator disclaims any responsibility
or warranty to exercise any editorial control over the Contents
and/or the WAP Site.
8.5
The Provider shall not be liable to the User in the event
that the Provider is unable to perform any obligation hereunder
or provide the Service because of any factor or reason outside
of the Provider's reasonable control, including without
limitation acts of God, industrial action, default or failure
of a third party, failure or malfunction of equipment or
transmission difficulties or governmental policy or action
or interruption of service.
8.6
The Provider and/or the Operator shall not be liable to
the User for any failure, delay, malfunction or non-performance
of the Service or any function relating respectively thereto
directly or indirectly due to any Year 2000 non-compliance
and the Provider and/or the Operator expressly disclaims
any warranty or responsibility that :-
8.6.1
the WAP Site or any information contained therein or the
Service will be error-free or that the Service will be
uninterrupted;
8.6.2
the WAP Site or any information contained therein can
be duly transmitted from or to, or that the WAP Site or
any information contained therein can be accessed by,
viewed or downloaded by the User or any third party.
8.7
In no event will the Provider and/or the Operator be liable
to the User or any third party (whether in contract, tort,
statute or otherwise) 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 the User or such party in connection
with the Conditions or in any other way out of the Service
or the WAP Site or any information contained therein.
8.8
The Provider shall not be party to any transaction, agreement
or contract (if any) as made between the User and the Operator
and/or any third party through use of the Service. Notwithstanding
anything herein to the contrary, the Provider shall not
be involved in or in any way liable for or in any dispute
between the User and the Operator and/or any third party.
8.9
No oral or written information given by the Provider and/or
the Operator, their employers, affiliates, agents or the
like, shall create a warranty or binding representation
unless it is in writing and signed by a party authorised
by the Provider to do so.
8.10
The Provider and/or the Operator does not warrant the confidentiality
or security of data whether personal or otherwise transmitted
through the Service.
8.11
Nothing under these terms limits liability of the Provider
and/or the Operator for any personal injury or death caused
by negligence of the Provider and/or the Operator.
9.
Suspension and Termination of Service
9.1
The Provider and/or the Operator may forthwith suspend or
terminate the Service in whole or in part if it is at the
absolute discretion of the Provider and/or the Operator
that the User is in breach of any of the provisions herein
without prejudice to the Provider's and/or the Operator's
rights to claim all their loss and damages and the Provider's
exercise of any other rights hereunder.
9.2
Notwithstanding the foregoing, the Service or any part thereof
may be terminated by the Provider immediately without notice
if the Provider and/or the Operator cease to provide the
Service or any part thereof for any reason.
9.3
Upon suspension or termination of the Service, the User
shall forthwith pay the Operator and/or the Provider all
charges, fees, interest and expenses in relation to the
Service and shall make no claim whatsoever against the Provider
and/or the Operator.
10.
Miscellaneous
10.1
The Provider may assign or transfer the Conditions or all
of its rights and/or obligations hereunder.
10.2
The Conditions shall enure for the benefit of the Provider's
successors and assigns.
10.3
The Conditions is personal to the User and none of the rights
or obligations of the User hereunder shall be assigned,
transferred, charged, sub-contracted or sub-licensed without
the Provider's prior written consent.
10.4
All rights not specifically and expressly granted to the
User by the Conditions are reserved to the Provider.
10.5
The rights, powers and remedies of a party under the Conditions
are cumulative with the rights, powers or remedies provided
by law independently of the Conditions.
10.6
A party may exercise a right, power or remedy at its discretion,
and separately or concurrently with another right, power
or remedy. A single or partial exercise of a right, power
or remedy by a party does not prevent a further exercise
of that or of any other right, power or remedy.
10.7
The rights of either party shall not be prejudiced or restricted
by any indulgence or forbearance extended to the other party
and no waiver by any party in respect of any breach shall
operate as a waiver in respect of any subsequent breach.
10.8
A provision or a right under the Conditions may not be waived
except in writing signed by the party granting the waiver,
or varied except in writing signed by the parties.
10.9
Failure or delay of any party at any time to take action
against the other party as provided in the Conditions will
not affect such first-mentioned party's right to require
full performance of the Conditions at any time thereafter.
Waiver by any party of a breach of any provision of the
Conditions will not constitute a waiver of any subsequent
breach nor in any way affect any right, power or remedy
of that party under the Conditions.
10.10
Nothing in the Conditions shall constitute or be deemed
to constitute a partnership between the parties hereto or
constitute or be deemed to constitute that one party act
as an agent of the other for any purpose whatsoever and
neither party shall have the authority or power to bind
the other or create a liability against the other in any
way or for any purpose.
10.11
The Conditions sets forth the entire agreement and understanding
between the parties or any of them in relation to the User
and the subject matter of the Conditions and supersedes
and cancels in all respects all previous agreements, letters
of intent, correspondence, understandings, agreements and
undertakings (if any) between the parties with respect to
the User and the subject matter hereof, whether such be
written or oral and no variations thereof shall be effective
unless made in writing.
10.12
Any notice or communication to be given under the Conditions
shall be deemed to be duly served when delivery of it is
recorded (in the case of first class recorded delivery post)
or posted (in the case of ordinary post) or delivered (in
the case of personal delivery) or dispatched (in the case
of communication by facsimile or other telemessage equipment)
to the relevant party's address appearing in the Conditions
or to such other office or address as that party may hereafter
specify to the other party or parties hereto by notice in
writing.
10.13
The Conditions shall be governed by and construed in all
respects in accordance with the laws of the Hong Kong and
the parties hereto irrevocably submit to the non-exclusive
jurisdiction of the Courts of the Hong Kong.
To
contact us : adm@hk6.com
