In this Agreement the following words and expression have the following meanings:

"Application"

"Content"

shall include public holidays and Sundays.

each Internet email address allocated to you by HMSL from time to time.

Hutchison Multimedia Services Limited.

HMSL's E-Mail services (including without limitation thereto), as described in Schedule 1.

"Licence" HMSL's

licence to provide the Services.

the Subscriber specified in the Application who has requested the Services.

HMSL shall use reasonable efforts to make HutchCITY Services available to you during the term of this Agreement. HMSL may suspend or terminate HutchCITY Services in whole or in part or limit your access to HutchCITY Services at any time without notice.

HMSL reserves the right, in its absolute discretion, to: (a) prevent you from accessing any Content; and (b) withdraw, expand, reduce, and/or modify at any time any or all HutchCITY Services offered to you from time to time.

Subject to the terms and conditions of this Agreement, HMSL shall allow you access to HutchCITY Services by way of at least one of the following methods: caller line identification ("CLI"), login ID and/or password, smartcard or any other access method authorised by HMSL in writing from time to time ("Authorised Access Method").

(a)Be responsible for any use of HutchCITY Services by you, and any person accessing HutchCITY Services by way of any Authorised Access Method (including without limitation via your account's CLI, or any login ID or password given to you).

(b)Not use, or allow others to use, HutchCITY Services for any purpose HMSL considers improper, immoral, defamatory, or otherwise unlawful or for any unsolicited advertising or promotion.

(c)Not use, or allow others to use. HutchCITY Services for junk mail; chain letters or spaming or the transmission of any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature.

(d)Comply with Hong Kong law or other applicable law relating to HutchCITY Services.

(e)Not, nor allow others to, act in such a way that may jeopardize or impair the provision of HutchCITY Services by HMSL in Hong Kong or any other parts of the world.

(f)Not disclose to any unauthorised person any Authorised Access Method (including without limitation any login ID or password issued by HMSL to you for use in conjunction with HutchCITY Services). If you become aware of any unauthorised access to HutchCITY Services by any person who has used any Authorised Access Method (including without limitation your account's CLI or any login ID or password given to you) without your permission, or if you believe that your password has been lost or stolen (or otherwise obtained by a third party without your permission), you shall immediately notify HMSL. HMSL shall not be liable for any loss or damage you sustain by reason of any such access to HutchCITY Services or any such use of your login ID or password.

(g)Any act or omission of any person accessing HutchCITY Services using any Authorised Access Method (including without limitation your account's CLI or your login ID or password) which would constitute a breach of this Agreement if done or omitted to be done by you, shall be deemed to be a breach of this Agreement by you for all purposes under this Agreement.

(h)Not use, nor allow others to use, HutchCITY Services in any way which may breach any confidence, copyright or other intellectual property or similar rights of HMSL or any third party.

(i)Abide by any rules issued by HMSL from time to time relating to the use of HutchCITY Services and shall also abide by generally accepted rules of conduct relating to the proper use of the Internet. If, in HMSL's sole discretion, you have violated any of these rules, HMSL may suspend or limit your access to all or part of HutchCITY Services without prior notice and/or terminate this Agreement immediately.

(j)Indemnify and keep HMSL indemnified against any action, liability, cost, claim, loss, damage, proceeding, expense (including without limitation legal costs on solicitor and own client basis) suffered or incurred by HMSL arising from or which is directly or indirectly related to:

(i) your or any other person's use of HutchCITY Services where any Authorised Access Method (including withoutlimitation your account's CLI or your login ID or password) has been used (whether or not you have authorized such use), including without limitation claims arising from or for any act alleged to be illegal, defamation, intellectual property right infringement, damage to computer database, loss of data, distribution of obscene or offensive material; or

(ii) any breach or non-observance of any provision contained in this Agreement by you, or any other person.

 

(a)To the extent permitted by law, you shall not take any step, action or proceedings whether legal or otherwise and shall not make or threaten to make any claim or demand against HMSL or its agents, contractors, sub-contractors or affiliated companies in relation to any Content accessed by or through using HutchCITY Services (including without limitation claims for defamation and intellectual property right infringement).

(b)You have supplied your correct and complete information (including without limitation name, address, telephone number, identity card number and/or business registration certificate) to HMSL and shall notify HMSL of any change or alteration to that information in writing via E-mail as soon as practicable.

(c)The Email addresses provided by HMSL to you are solely for HMSL's use in providing the Services. You acknowledge that you shall not acquire any right whatsoever in the Email addresses and shall cease to use the Email addresses immediately upon termination of this Agreement.

(d)Content is copyright material and may be protected by trademarks, service marks, patents or other proprietary rights and laws.

This Agreement shall commence when HMSL accepts your Application and may be terminated by either party immediately by written notice via E-mail or otherwise to the other.

Should this Agreement be terminated for any reason whatsoever you shall immediately return the Email addresses to HMSL, erase all the Software, and cease to use the Services.

Termination of this Agreement shall not affect any rights or liabilities of the parties which have arisen prior to the date of termination (including without limitation any rights or liabilities which may arise after the date of termination due to your failure to comply with clause 6.2 above). Unread or unsent messages shall not be forwarded.

All indemnities, restrictions and obligations on your part contained in this Agreement shall survive termination of this Agreement.

HMSL shall not be liable to you in the event that HMSL is unable to perform an obligation or provide HutchCITY Services to you for any reason, whatsoever whether within its control or otherwise including without limitation acts of God, industrial action, default or failure of a third party, governmental action, or interruption of HutchCITY Services.

In no event will HMSL be liable to you whether in contract, tort, statute or otherwise (including without limitation for negligence, breach of contract, defamation, or intellectual property right infringement) for any special, direct, indirect or consequential loss or damage (including without limitation loss of revenue or profits, loss of data or goodwill, or the loss of use of any equipment or software) which is suffered or incurred by you arising out of the use or in any other way out of this Agreement, HutchCITY Services.

HMSL shall not be party to any transaction made between you and any third party through use of HutchCITY Services.

HMSL cannot accept and disclaims any responsibility to control the Content, whether or not the Content is stored by HMSL. All information provided through HutchCITY Services (including without limitation the Content) is for reference purposes only. HMSL, its agents, contractors, sub-contractors, affiliated companies and all third party Content providers do not guarantee the accuracy or completeness of any information provided through HutchCITY Services (including without limitation any Content), and do not accept any liability for any cost, expense, loss, or damage arising from any inaccuracies or omissions.

HMSL disclaims liability for any error, omission or misstatement in or arising from the Content. HMSL does not endorse or recommend any person, name, product or service referred to in the Content. The Content does not constitute HMSL's view or opinion and HMSL expressly disclaims any responsibility or warranty to exercise any editorial control over or to edit or amend or delete any Content before it is accessed by you through HutchCITY Services. HMSL accepts no responsibility and makes no representation or warranty that the Content will not be objectionable or offensive to you or any other person.

Should you be dissatisfied with HutchCITY Services in any way or object to the terms upon which it is offered (including any amendments thereto) your sole remedy is to terminate your use of HutchCITY services and also to notify HMSL of such termination.

No oral or written information given by HMSL, its employees, affiliates, agents or the like shall create a warranty or binding representation. You hereby acknowledge that you have not and will not rely on such information.

HMSL does not warrant the confidentiality or security of data whether personal or otherwise transmitted through HutchCITY Services (although HMSL's current practice is to take reasonable steps to maintain confidentiality except to the extent required by law, regulation or the protection of HMSL's rights or property).

Nothing under this Agreement limits HMSL's liability for any personal injury or death caused by HMSL's negligence. However, you acknowledge and take notice that HutchCITY Services are not appropriate for use in circumstances where personal injury or death could arise from reliance on HutchCITY Services whether or not HMSL is negligent.

Without limitation to the foregoing, HMSL shall not be liable to the Subscriber or any other person, body corporate, unincorporated association or an authority for any failure, delay, malfunction or non-performance of the E-mail Address or the HutchCITY Services and Services or any function relating thereto directly or indirectly due to the advent of year 2000.

HMSL's total liability under this Agreement, whether in relation to any one incident or series of incidents arising from a common cause, shall not exceed HK$100.

Any claim by you against HMSL arising out of this Agreement must be notified to HMSL within 28 days of the incident giving rise to such claim failing which you will be deemed to have waived your rights in respect of such claim.

HMSL's employees, agents, subcontractors and affiliated companies shall have the benefit of the rights, exclusions and limitations of the provisions contained in this clause 7 as if such provisions were expressly for their benefit. To the extent of this clause 7, HMSL enters into this Agreement not only on its own behalf but also as agent and trustee for such employees, agents, subcontractors and affiliated companies.

You acknowledge and agree that HMSL does not endorse the contents of any of your communications and does not accept any responsibility for libelous obscene, threatening harassing or offensive material contained therein or for any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.