1. ACCEPTANCE OF TERMS AND CONDITIONS
The terms “ESDlife” and “we” as used herein refer to ESD Services Limited. ESDlife operates and administers the websites (“Websites”) through which certain commercial services are delivered. The services provided by ESDlife via the Websites (“Services”) are accessible through the personal computer delivery channel and the mobile channel.
The terms “you” and “User” as used herein refer to all individuals and / or entities accessing the Services for any reason or any purpose. The term “Contents” is used herein to refer to all or any of, as the case may be, the data, text, button icons, links, HTML codes, trademark, software, music, sound, photographs, graphics, still pictures, series of moving pictures, (whether animated or not), videos, merchandise, products, advertisements, services or any compilation or combination of them and any other contents or materials that may be found on any website or any webpage.
ESDlife provides the Services to you, subject to the following Terms and Conditions of Use (“T&C”), which may be updated and revised by us from time to time by posting the revised version at the Websites. Some Services may be subject to additional terms and conditions governing their provision which additional terms will be made known to you upon you expressing your intent to use those services. Those additional terms and conditions are hereby incorporated by reference into the T&C.
You accept and agree to be bound by the T&C upon your using any Services or otherwise accessing the Websites or using any information found therein. If you do not accept the T&C, you may not and should not access the Websites or use the services or information provided thereunder. If you have any questions about the T&C, or about accessing and using the Websites, please contact us at firstname.lastname@example.org.
2. DESCRIPTION OF SERVICE
All Services together with any new features that augment or enhance any such services currently offered shall, unless explicitly stated otherwise, be subject to the T&C. You understand and agree that the Services are provided “AS-IS” and that ESDlife assumes no responsibility for the timeliness, deletion, mis-delivery or failure of the provision of any Services.You understand that the technical processing and transmission of the Services may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. ESDlife shall, accordingly, in no circumstances, be liable for any failure of any Services in whole or in part or for your inability to gain access in whole or in part to such Services due to the delay or failure of any communication networks or any party providing such access.
You may be asked to fill in one or more than one of our registration or application forms (on-line or otherwise) before certain Services become available to you. In filling in those forms, you undertake to (a) provide true, accurate, current and complete personally identifiable information about yourself as required, (b) provide true, accurate, current and complete information about any Contents posted or offered by you through any Websites (“Other Information”) and (c) maintain and promptly update your personally identifiable information and Other Information to keep it true, accurate, current and complete. If you provide any Other Information or personally identifiable information that is untrue, inaccurate, not current or incomplete, or ESDlife has reasonable grounds to suspect that such is untrue, inaccurate, not current or incomplete, ESDlife has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
If you are under the age of eighteen, a minor or not capable of assuming legal responsibility, you should seek advice from your parents or guardians as to the meaning and consequences of these T&C before using any of the Services. You must not provide us with your personally identifiable information unless you have received the consent from your parents or guardians. ESDlife presumes that every User of the Websites has the requisite capacity required for any use of any of the Services and, by using any of the Services, you undertake and warrant to us that you have the requisite capacity. ESDlife is not obliged to verify the age or capacity or any Users, but in the event it is discovered that any Users lack the requisite capacity, ESDlife reserves the rights as may be available against such Users, or the parents or guardians of such Users, including the right to be indemnified by them against all the loss or damage suffered by us as the result of the said lack of capacity or to cancel their registration and terminate their access to the Websites.
6. PIN, PASSWORD AND SECURITY
You will receive a password and/or Personal Identification Number (“PIN”) upon completing our on-line registration form. You may request the alteration of your password or PIN (via the Websites or otherwise) if necessary from time to time.You may also receive passwords in respect of digital or electronic certificates issued to you under certain Public Key Infrastructuresfor effecting on-line transactions. You are responsible for maintaining the confidentiality of the said passwords and PIN, and are fully responsible for all activities that occur under those passwords or PIN. You agree to (a) immediately notify ESDlife of any unauthorized use of your passwords or PIN or any other breach of security and (b) ensure that you exit from your passwords or PIN at the end of each visit to the Websites. ESDlife cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 6 or your use of any digital or electronic certificates in connection with the Services.
You acknowledge that the said passwords and PIN are confidential and must not be disclosed to any other person(s) under any circumstances. Any words, action or conduct whether intentional or unintentional, by you breaching that confidentiality shall render you liable to ESDlife for all losses and damages thereby caused. You shall take all necessary precautions to maintain the confidentiality of the said passwords and PIN. You hereby agree and acknowledge that the use of the Services by any person whatsoever (whether authorised by you or not) with those passwords and PIN shall constitute and be deemed the use of the Services by you. You shall notify ESDlife immediately of any actual or possible unauthorised use of those passwords and PIN and shall confirm the same in writing without delay to ESDlife. Until ESDlife has received such written confirmation you shall have no claim against ESDlife and shall be liable to ESDlife for all losses and damages incurred by ESDlife in respect of any use of the Services whether authorised by you or not.
You acknowledge and agree that the only duty of ESDlife is to verify those passwords and PIN and ESDlife shall not be liable in respect of:
- any loss or damage suffered by you or any other person as a result of any failure to effect or execute instructions through various electronic delivery channels or perform any obligation thereunder where such failure is attributable either directly or indirectly to any circumstances or events outside our control: or
- any other loss or damage whatsoever suffered by you or by any other person as a result of any instructions through various electronic delivery channels given with the correct password and/or PIN.
You acknowledge that, given the nature of the Internet, we cannot guarantee that any transmission of personally identifiable information, Contents or Other Information under any Services is completely secure. By using or accessing any Services and in consideration of such access and use, you acknowledge that you are satisfied that the security features that we have adopted as set out in our Security Statement are adequate for all your purposes.
7. USER CONDUCT
Any Contents posted to or accessed via the Websites, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Contents originated. This means that the Users from whom Contents originate, not ESDlife, are entirely responsible for all the Contents that they upload, post, email, offer or otherwise transmit via the Services. ESDlife does not control the Contents posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Contents. For the Users accessing Contents via the Services, they understand and acknowledge that by so using the Services, they may be exposed to Contents that are offensive, indecent or objectionable. Under no circumstances will ESDlife be liable in any way for any Contents for, including but not limited to, any errors or omissions in any Contents, or any loss or damage of any kind incurred as a result of the use of any Contents posted, emailed, offered or otherwise transmitted via the Services.
You undertake not to use the Services to:
- upload, post, email, offer or otherwise transmit any Contents in respect of which you have no right (either proprietary, contractual, or fiduciary) to transmit or which is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory or otherwise objectionable;
- impersonate any person or entity by way of transmitting any forged or manipulated Contents through the use of any Services.
- upload, post, email, offer or otherwise transmit any Contents that infringe any proprietary rights or intellectual property rights including, without limitation, patent, trademark, trade secret, copyright of any party;
- upload, post, email, offer or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except when expressly authorised to do so by us;
- upload, post, email or otherwise transmit any Contents that contain software viruses or any other computer code, files or programs that would interrupt, destroy or limit the functionality of the Websites and/or computer software or hardware or telecommunications equipment constituting them;
- interfere with or disrupt the Services or servers or networks through which the Services is provided, or disobey any requirements, procedures, policies or regulations of such networks;
- collect or store personally identifiable information about other Users.
You acknowledge that ESDlife does not have any obligation to pre-screen Contents, but that ESDlife has the right (but not the obligation) in its sole discretion to refuse or remove any Contents that is available via the Services. Without limiting the said right, ESDlife has the right to remove any Contents that, in its opinion, violate the T&C or are otherwise, in its opinion, objectionable. You undertake to evaluate, and agree to evaluate and to bear all risks associated with the use of any Contents, including any reliance on the presumed accuracy, completeness, or usefulness of such Contents. In this regard, you acknowledge that you may not rely on any Contents created by ESDlife or submitted to ESDlife, including, without limitation, information contained in chat room, forum, auction sites and Cybermall and all other parts of the Services.
You acknowledge and agree that ESDlife may preserve Contents and may also disclose Contents if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to, without limitation: (a) comply with legal process; (b) enforce its rights; or (c) respond to claims that any Contents violate the rights of third-parties.
8 ． MERCHANDISE
All merchandise, products or services offered, introduced or mentioned in the Websites by third parties (“Merchandise”) are not offered or provided by us. You make no reliance whatsoever on ESDlife regarding the accuracy or reliability of any of the information that may be accessed via the platform provided through the Websites concerning such Merchandise. The contracts for the purchase, acquisition or obtaining of the Merchandise and/or the Public Services will be formed between you and the third parties selling, offering, or providing the same. ESDlife is not a party to those contracts and is simply providing a platform through which the effecting of commercial activities can be facilitated and/or on-line payments effected. You are strongly encouraged to make whatever investigation you feel necessary or appropriate before proceeding with any transaction (either on-line or off-line) with any of the said third parties. ESDlife, accordingly, makes no and/or disclaims all representations and warranties, express or implied, with respect to availability, merchantability, fitness for a particular purpose, any implied warranties arising from course of performance or course of conduct in relation to the Merchandise. ESDlife shall not be responsible and shall in no event be liable for any damages whatsoever, including, without limitation, costs of procurement of substitute goods or services, lost profits, lost data or any direct, indirect, special, punitive, incidental, exemplary or consequential damages relating to the unavailability, use, inability to use, performance or non-performance of the Merchandise that is offered, introduced, mentioned or provided in or via the Websites.
In the case of any on-line payment in the purchase or obtaining of any Merchandise offered, introduced or mentioned in or via the Websites being effected by the payment platform provided by us, notwithstanding anything herein contained, ESDlife shall not be liable to you for and in respect of any loss or damage (including indirect and consequential losses and damage) suffered by you in connection with any on-line payments made by you by reason of (a) any failure, delay, interruption, suspension or restriction of the transmission of any information or message from any payment gateways of the relevant banks and/or third party merchants for processing credit/debit/smart card or other payment facilitating mechanism, (b) any error in or omission from any information or message transmitted from the said payment gateways, (c) any breakdown, malfunction or failure of those gateways and (d) anything arriving out of or in connection with them.
9. PUBLIC DISCLOSURE OF INFORMATION
Before you send any Contents, Other Information or personally identifiable information, you must check whether you are sending it in the public area of the Websites. If you are sending it in the public area, you acknowledge that you are doing so voluntarily and that (a) ESDlife is granted a world-wide, royalty free licence to reproduce, modify, adapt and publish such Contents for as long as you elect to continue to include such Contents in the Websites and (b) any person may use such Contents for the purpose of exchanging email/ emails or chatting between or amongst Users or introducing you to Users. All such Contents you voluntarily make available in the public area are not to be regarded as being collected by ESDlife.
You agree to indemnify, defend and hold harmless ESDlife, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees against any and all claims, proceedings, damages, injuries, liabilities arising from (a) your acts or inaction in breach of these T&C, (b) your use of any Services or (c) the Contents, Other Information or personally identifiable information you submit, post to or transmit through the Services.
11. NO RESALE OF SERVICES
You undertake not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
12. MODIFICATIONS TO SERVICES
ESDlife reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that ESDlife shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
13. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotion of third parties placing advertisements on the Websites or other parties found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and those third parties. You agree that ESDlife shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Websites.
The Websites contain links to other sites or pages on the World Wide Web, which are not maintained or controlled by ESDlife and for which ESDlife is not responsible. When you activate any such links, you leave the Websites and access such sites or pages at your own risk and ESDlife shall not be responsible or liable for any Contents, advertising, products, or other materials on or available from such sites or pages. You further acknowledge and agree that ESDlife shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Contents, goods or services available on or through any such sites or pages.
15. MOBILE CHANNEL
In respect of the mobile channel, you acknowledge that the designated mobile telecommunication devices made accessible to the Services are able to access only certain Internet addresses, that you can only view documents the formats of which are supported by our designated software and that certain pop-up windows may not be supported and you acknowledge that any alteration, reconfiguration or similar acts done to the relevant mobile telecommunication devices (including the hardware and software contained therein) would result in the alteration of the said design and may cause the Services to be disrupted and/or become inaccessible.
You understand and acknowledge that ESDlife is not the manufacturer of the relevant mobile telecommunication devices nor a wireless telecommunication service provider and ESDlife shall, in no event, be liable for any direct, indirect, incidental, special, consequential or exemplary damages resulting from (a) the use or failure to use the Services via the relevant mobile telecommunication device(s); (b) the access or failure to access the mobile channel via the relevant mobile telecommunication device(s); (c) any matters relating to any use of or the failure to use the relevant mobile telecommunication device(s)relating thereto; and (iv) any damage or loss of data to your mobile telecommunication device whether or not caused by the use of the Services.
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY LAW, ESDlife EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- ESDlife MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY CONTENTS OR MERCHANDISE PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN ANY SOFTWARE WILL BE CORRECTED.
- ANY CONTENTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM AND/OR MOBILE TELECOMMUNICATION DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENTS.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ESDlife OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE T&C.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY LAW, ESDlife SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY CONTENTS, OTHER INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR PERSONALLY IDENTIFIABLE INFORMATION; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH ANY SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES.
ESDlife’s LIABILITY, IF IT IS SO HELD LIABLE DESPITE THE PROVISIONS HEREIN, TO THE USER IN RELATION TO THE SERVICES SHALL BE LIMITED TO THE AMOUNT OF THE RELEVANT TRANSACTION OR THE DIRECT DAMAGES SUSTAINED, WHICHEVER IS LESS.
18. IP RIGHTS AND COPYRIGHT AGENTS
ESDlife respects copyright law and expects its Users to do the same. Unauthorized copying, distribution, modification and public display of copyrighted works is an infringement of the copyright holders’ rights. As a condition of your use of the Services, you agree that you will not use the Websites to infringe the intellectual property rights of others. ESDlife reserves the right to terminate the registration of any User upon notice of any infringement of the copyrights or other intellectual property rights of others in conjunction with use of the Websites. ESDlife will investigate any notice it receives in relation to copyright infringement committed by Users of, and involving use of the Websites.
ESDlife will respond expeditiously to claims of copyright infringement committed using the Websites that are reported to their “Designated Copyright Agent” identified below. If you are a copyright owner, or authorized to act on behalf of a copyright owner or the owner of any exclusive right under copyright, please report your notice of infringement of such copyright, that you believe is occurring or has occurred on the Websites, by providing the following information and delivering the same, to the Designated Copyright Agent:
- Identity of the copyrighted work that you claim has been infringed, or if multiple copyrighted works, a list of the copyrighted works that you claim have been infringed, using the Websites;
- A description of the Contents of the material that you claim is infringing another’s copyright,
- Your street or mailing address, telephone number, e-mail address and other contact details;
- A statement in good faith from you that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law; and
- A statement in good faith from you that the information you have provided is accurate and that you are the copyright owner, or authorized to act on behalf of the owner of the copyright or that you hold an exclusive right under the copyright.
All claims of copyright infringement should be delivered to the following “Designated Copyright Agent” of ESDlife:
Customer Service Manager
ESD Services Limited
Unit 1209, 12/F Two Harbourfront
ESD Services Limited
22 Tak Fung Street
19. GOVERNING LAW
The T&C shall be construed in accordance with, and this agreement is governed by the laws of the Hong Kong Special Administrative Region of the Peoples’ Republic of China (“Hong Kong”), without regard to the conflict of legal provisions thereof. You agree that any claim you might have against ESDlife shall be brought before the courts of Hong Kong.
If any one or more of these T&C, or their application in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of that term or condition in any other respect and the remaining T&C shall not in any way be impaired.
ESD SERVICES LIMITED