Personal Information Collection Statement
1. We may collect the data of Portal Users and other individuals in connection with the purposes of providing the Portal services. These Portal Users and other individuals may include HKAB and its designated personnel, and the designated authorized administrative user, other end-users of each of the relevant HKAB members as defined in the User T&Cs (collectively “you”, “your”).
2. The information collected about you will be used for providing the Portal services.
3. Information we collected about you will be kept confidential but we may provide data to the following parties or any of them for the purposes of providing the Portal services:
i. any Authorities within Hong Kong such as the Custom and Excise Department, Hongkong Post Certification Authority;
ii. any persons to whom we are under an obligation or required or expected to make disclosure for providing the Portal services.
4. Information we collected about you will not be disclosed by us to any other party in a form that would identify you unless it is permitted or authorised by law of Hong Kong SAR.
5. Where you provide to us data about another person, you are responsible to inform that person about this Personal Information Collection Statement and, in particular, tell him/her how we may use his/her data.
6. It is voluntary for you to supply to us your personal data. Failure to provide related data may affect the processing of your request.
7. Our general policy is to retain your data for 7 years. We do not offer online facilities for you to delete personal data held by us.
8. Under the Personal Data (Privacy) Ordinance, you have a right to request access to or correction of the data about you being held by us. If you wish to do so, please send requests for access to data or correction of data or for information regarding policies and practices and kinds of data held to:
The Data Protection Officer
PO Box 68777
Kowloon East Post Office
9. We may charge a reasonable fee for processing a data access request. For reference purpose, a photocopying charge of HK$1.5 per page (A4 size) and HK$2.0 per page (A3 size) (black and white copy) will be levied in relation to your requested information. The charge is subject to revision from time to time.
Faster Payment System (“FPS”) - Fraud Reporting System
User Terms and Conditions (“Terms”)
These Terms set out the rules and requirements for the Users’ (as further defined below) access and/or use of the Fraud Reporting System in relation to FPS, developed and operated by Certizen Ltd (“Certizen”, “we”,“us” or “our”) for the Hong Kong Association of Banks (“HKAB”),which shall only be accessed or used through the website https://uat.myfacesign.com/pro_hkab/cus/login.html or any other designated websites, sites, systems, programs, applications, platforms or portal user interface (if any) as we and/or HKAB may from time to time introduce and make available for Users’ access and use (and any and all versions, upgrades and/or updates thereof) (“Portal”).We recommend that you print a copy of these Terms for future reference.
The objectives and functionalities of the Portal are to provide an online platform to facilitate HKAB’s member banks to conduct manual checking and real-time verification of e-certificates of merchants, and process related inquiries with us on any potential fraud or unlawful cases in relation to verification of merchants and FPS app2app payments.
The Portal is developed and owned by us, and licensed for access and/or use by HKAB, their Authorized Entity/Entities (as further defined below) and Users in accordance with the terms of the Portal License and Service Agreement dated [insert execution date of that agreement] between HKAB and us (“Agreement”). Your organization is one of the entities authorized by HKAB to access and use the Portal pursuant to the Agreement (each an “Authorized Entity”, and together as the “Authorized Entities”).For the purpose of these Terms, and where the context so admits, the reference to “Authorised Entities” in these Terms shall include HKAB in the context of HKAB and its own designated Users’ access and/or use of the Portal. Unless otherwise expressly permitted by HKAB and/or Certizen (as the case may be), each Authorized Entity shall only authorize and designate one (1) administrative user and three (3) other end-users (i.e. up to a maximum of four (4) accounts for Users per Authorized Entity) to access and use the Portal (each a “User”, and collectively as the “Users”). For the purpose of this Terms, references to “you” or “your” in these Terms refers to the relevant Authorized Entity/Entities and/or its/their Users (as the case may be).
1. ACCEPTANCE OF THESE TERMS
1.1. These Terms apply to Authorized Entities and their Users. By clicking the [“Agree” or “Accept” or “Proceed”] button or otherwise by logging into your account for the Portal, you confirm your agreement and acceptance of these Terms in your own capacity as a User, and that you are also duly authorized by your organization to accept these Terms for and on its behalf in its capacity as an Authorized Entity.
1.2. Please read these Terms carefully and confirm your acceptance of these Terms before setting up or logging into your User account for access and/or use of the Portal. If you do not agree with or accept these Terms, you will not be able to log-in, access and/or use the Portal.
1.3. We, with the prior approval of HKAB, may amend and update these Terms from time to time. In the event of any amendments or updates to these Terms, we will notify you in advance by reasonable written notice to give you the opportunity to review and accept the revised Terms. If you do not accept the revised Terms, you will not be able to continue to access and/or use the Portal.
1.4. HKAB shall have the right, in its sole discretion, to approve any Authorised Entity to access and/or use the Portal. Any such Authorised Entity’s access to, and use of, the Portal shall be conditional on (i) the User registration process as set out in Section 3 below and (ii) such Authorised Entity’s acceptance of, and compliance with, these Terms (as may be amended or updated from time to time under Clause 1.2 above), and any other terms and conditions imposed by HKAB upon such Authorised Entity (including, without limitation, the obligation to pay a fee to HKAB, the amount of which shall be determined by HKAB from time to time).
1.5. No person other than an Authorised Entity (and/or its Users) shall access and/or use the Portal. Each User account is limited to single-User basis only for use by the named designated User of the Authorized Entity, and any transfer or multiple-user sharing of a single User account is not permitted without prior consent from HKAB and Certizen.
2. CHANGES TO THE PORTAL
2.1. We, with the prior approval of HKAB, may update and/or change the Portal (or any part thereof) from time to time to: (a) revise, enhance, improve or modify any of the features, functionality and/or specifications of the Portal, (b) comply with any relevant requirements imposed by the Hong Kong Monetary Authority or any other regulatory or enforcement authorities, and/or (c) conform to the applicable laws in Hong Kong. Any versions, updates and/or upgrades of the Portal shall be subject to these Terms (as may be amended or updated under Clause 1.2 above).
2.2. We reserve the right, in our sole discretion but without any obligation, to make improvements to, or correct any error or omissions in any portion of the Portal at any time.
2.3. We may review and update information and contents of the Portal (including but not limited to information concerning any merchants and/or their e-certification) from time to time.
3. ACCESSING THE PORTAL
3.1. The Portal shall only be accessed or used through the means set out above in the preamble of these Terms.
3.2. Unless otherwise expressly permitted by HKAB and/or Certizen, each Authorized Entity shall only authorize and designate up to four (4) Users in total, i.e. one (1) administrative user and three (3) other end-users. Each Authorized Entity may apply with us directly for the first-time registration of its administrative user with the required contact information (i.e. the administrative users’ full name and work email), which we shall check against the relevant contact information on HKAB’s records (e.g. HKAB’s website at www.hkab.org.hk or any other relevant records in HKAB’s possession upon our liaison with HKAB on any such checks if needed) for the purpose of authenticating the identity and contact detail of any User. Upon the successful registration of the administrative user, the other authorized end-users shall then apply to register their user account online, subject to our authentication and verification of their identity by the same process as stated above. We shall provide the relevant information and instructions for account set-up and log-in prior to the Users’ first access and use of the Portal. Unless otherwise instructed by us, any subsequent or future revision to the designation of the administrative user by any Authorized Entity shall follow the same application and authentication arrangement as stated above.
3.3. The respective access rights of the Users are as follows:
|User type||Access rights|
|Administrative user (Supervisor)||
• Access the database of the Portal to check and verify information concerning merchant(s) and its/their e-certification;
• Submit and process inquiries with Certizen on any potential fraud or unlawful cases in connection with merchant verification and FPS’ app2app payments;
• Admin User can access to all the compliant data for that particular Authorized Entity
|Other end-users (Operator)||
• Access the database of the Portal to check and verify information concerning merchant(s) and its/their e-certification;
• Submit and process inquiries with Certizen on any potential fraud or unlawful cases in connection with merchant verification and FPS’ app2app payments;
• Operator can access to all the enquiry data under his/her own enquiry cases (cases created by him/her)
For the initial set-up of User accounts on the Portal, each User will be provided with information and instructions for his/her User account, default password and any related security settings. Users will be required to reset their password on set-up and every ninety (90) days thereafter. Users must treat and keep their own account information confidential, and must not share, transfer or disclose it to any third party.
3.4. We have the right to disable any User account or password at any time, if in our reasonable opinion, you have failed to comply with any of these Terms.
3.5. If you know or suspect any unauthorized access or use of any User account and/or any unauthorized access or use of the Portal, you must promptly notify us at [insert Certizen’s contact address]
3.6. If and where applicable, in the event your access to and use of the Portal is subject to the Authorized Entity’s payment of a subscription or license or like fee to HKAB (where the amount of which is to be determined and notified by HKAB from time to time in accordance with Clause 1.4 above), and we are informed by HKAB that such fees have not been duly paid, we are entitled to immediately suspend or block the relevant Authorized Entity and its Users’ access and use of the Portal, without any notice. HKAB and/or Certizen shall not be liable or responsible in any way to any Authorized Entity and/or its Users for or in relation to any such suspension or blockage.
4. AVAILABILITY OF THE PORTAL
4.1. We shall host, operate, maintain, update and support the Portal in accordance with these Terms.
4.2. The Portal is currently supported and accessible under the following compatible browsers (or any other compatible browser versions as we may update and notify you from time to time):
(a) Google Chrome version 78;
(b) Mozilla Firefox version 70;
(c) Microsoft Internet Explorer 10; and/or
(d) Safari version 13.
4.3. You are responsible for configuring your own devices, equipment, systems, servers and/or networks for your access and use of the Portal, and your procurement and payment of any telecommunications and Internet service fees with your third party service providers.
4.4. The primary and preferred language of the Portal is US English. However, the Portal uses UTF-8 Unicode as the text encoding format, so that Traditional Chinese and Simplified Chinese are also supported for input only. .jpg, png, .gif attachments are also supported.
4.5. We do not guarantee that the Portal (or any information or contents thereon) will be available or uninterrupted beyond the service level as set out below (“Service Level”):
4.5.1. loading speed of the Portal in Hong Kong, excluding network latency, should be within  seconds [90 percentile];
4.5.2. any updated or new information, materials or contents on the Portal will be published immediately in real time (i.e. within  seconds between the submission of the data and the availability of the data to the Users);
4.5.3. the connectivity and system availability of the Portal during the office hours of a business day (i.e. being any day other than Saturday, Sunday or public holiday on which banks in Hong Kong are open for business) (“Business Day”) should be maintained at [99.5%] or above;
4.5.4. a maximum of  hours per week for scheduled system down time outside office hours is allowed. For avoidance of doubt, no system maintenance can be conducted during office hours of any Business Days. ; and
4.5.5. all Users will be notified immediately by email for any system down time or prolonged down time.
4.6. Without prejudice to the Service Level, we may suspend or withdraw or restrict the availability of the Portal (or any part thereof) for reasonable operational reasons which, as far as reasonably practicable, will occur during the scheduled downtime as described in the Service Level above. We will give you reasonable notice of any suspension or withdrawal.
4.7. Our technical support and maintenance for the Portal are as follows:-
4.7.1. The Portal is a 7x24 secured portal available and accessible by Users with the relevant compatible browsers as specified in Clause 4.2;
4.7.2. We shall support and make available technical support and maintenance for the Portal from any Users on Business Days between 9:00 a.m. to 5:00 p.m. through the Portal online help/dialogue function. Contact information for this help/dialogue function will be available at the Portal. We shall allocate and maintain sufficient resources and competent personnel with the relevant expertise to provide technical support and maintenance for the Portal to Authorized Entities and Users.
4.7.3. Any system suspension for maintenance and disaster recovery drill for the Portal should be scheduled outside office hours and completed within reasonable duration, subject to giving prior written notice of not less than  Business Days to the Users via email or announcement on the Portal (as the case may be).
5. ACCEPTABLE USE OF THE PORTAL
5.1. The Portal (and the information and database provided thereon) is provided solely for the purposes of (a) facilitating and assisting Authorized Entities and Users to conduct manual checking and real-time verification of e-certificates of merchants, and (b) processing related inquiries with us on potential fraud or unlawful cases in relation to verification of merchants and FPS app2app payments (“Purposes”). Information and data on the Portal are provided for your general information or reference only, and it is not intended to amount to providing any advice for your reliance. Where applicable, you must consult and obtain the relevant professional or specialist advice before taking, or refraining from taking, any action on the basis of the information obtained on or through the Portal.
5.2. You may use (including but not limited to download, copy, reproduce, distribute, modify, translate, compile, or otherwise create any new or derivative works from) the information and contents concerning any merchants and/or their certification (“Merchant Data”) from the Portal for the Purposes set out above, and for the business purpose of the relevant Authorized Entity/Entities concerned (including but not limited to for business intelligence; investigations; research and analysis; protection, safeguard and enforcement of the relevant rights and interests of the relevant Authorized Entity/Entities and their customers concerned).
5.3. Save for the permitted usage of the Portal’s information and contents as set out in Clause 5.2 above and the limited license rights for the Authorized Entities and their Users’ access and use of the Portal for the Purposes as set out in these Terms, you may not use or exploit the Portal (including but not limited to its source codes and object codes) for any other purposes without our consent.
5.4. You agree and undertake that you will not (and will not permit, procure, arrange, encourage, facilitate, solicit, assist, aid, abet, enable or enter into any dealings in, agreement or arrangement with any third parties to) do any or all of the following prohibited acts:
5.4.1. access and/or use the Portal in any way that misuse or misappropriate the Portal or any Information (as further defined below) contained therein;
5.4.2. access and/or use the Portal and/or Information in any way that breaches any applicable laws or regulatory requirements of, or having legal effect in, Hong Kong;
5.4.3. access and/or use the Portal and/or Information in any way or manner that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
5.4.4. access and/or use the Portal and/or Information in any way that infringes or violates the rights of Certizen, HKAB and/or any other third parties (including but not limited to intellectual property rights, rights in relation to protection of personal data);
5.4.5. access and/or use the Portal to upload or transmit any spam, unsolicited or unauthorised advertising, marketing or promotional material, or any other form of similar solicitation;
5.4.6. access and/or use the Portal by or through any third-party software, plug-ins, add-ons, mirror sites, tools or systems that are not developed or authorized by us, or otherwise with automated bots, programs, engines, data mining tools, crawlers, scrapers or the like, or attempt to do any of the foregoing;
5.4.7. engage in any ‘framing’, ‘mirroring’ or other techniques to simulate the features, functionality or appearance of the Portal (or any parts thereof);
5.4.8. knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or other harmful programs or similar computer codes designed to adversely affect the operation of any computer hardware or software;
5.4.9. engage in any forms of attacks (whether actual or suspected), including but not limited to phishing, hacking, sniffing, spoofing, denial of service (DoS) attacks, or distributed denial of service (DDoS) attacks;
5.4.10. circumvent, bypass or breach any technical or account controls, security and/or authentication measures, device or protection used in connection with the Portal (or any parts thereof);
5.4.11. to otherwise interfere, damage or disrupt the Portal (of any part thereof), or the security or integrity of any equipment, systems, servers, networks, or any related hardware and/or software on which the Portal is provided, operated or hosted.
5.5. For any user-generated contents, information and materials of any nature that any Authorized Entities and/or their Users may from time to time send, submit, post, upload, share, transmit, publish or otherwise made available on or through the Portal (whether by submitting web inquiries or otherwise), or otherwise under or pursuant to these Terms (“User-Generated Contents”), you shall remain fully responsible for those User-Generated Contents (including but not limited to the lawfulness and accuracy thereof). Matters of privacy and personal data protection in relation to personal data (if any) in User-Generated Contents are further set out under Section 9 below.
5.6. You shall remain responsible for dealing with, securing and backing up any User-Generated Contents.
5.7. We and/or HKAB fully reserves the rights to monitor, inspect and/or audit your access and/or use of the Portal, and where necessary, to include mechanisms and means in the Portal to monitor, inspect and verify your access and/or use of the Portal.
6.1. We shall keep and strictly maintain the confidentiality of any and all of the User-Generated Contents (including but not limited to any and all proprietary or non-public data, materials and/or information of the Authorized Entities and/or their business, and/or any and all personal data, that may be contained therein) which may be provided to us, or otherwise came into our possession, on or through the Portal, or otherwise under or pursuant to these Terms. We shall exercise and take all practicable steps to protect the security and confidentiality of such contents, in any event not less than the standards of confidentiality protection that we exercise in the protection of our own confidential information.
6.2. We shall only use any such User-Generated Contents for processing your inquiries (and provision of the same to the relevant regulators or enforcement authorities, if needed to escalate and follow-up on the relevant actions in connection with your inquiries) in relation to the Purposes. We shall not use, disclose or provide to any other third parties any User-Generated Contents for any other purposes without first obtaining the relevant consents from the Authorized Entities concerned.
6.3. The confidentiality obligations in this clause shall not apply to any information or part of the User-Generated Contents referred in Clause 6.1 above that:
6.3.1. is or becomes generally available to the public (other than as a result of any breach of confidentiality obligations by us or any other third parties); or
6.3.2. was available to, or developed by, you on a non-confidential basis before the User-Generated Contents is transmitted on or through the Portal to us, as can be demonstrated by contemporaneous documentary evidence; or
6.3.3. was, is or becomes available to you or us on a non-confidential basis from a third party who is not bound by any confidentiality duties or obligations, or who is not otherwise prohibited from disclosing such information to you or us; or
6.3.4. the relevant Authorized Entity concerned has specifically agreed in writing to the waiver of our confidentiality obligations or consented to our disclosure for any specific item of any such User-Generated Contents (whether in whole or in part), if any.
6.4. Notwithstanding the foregoing provisions in this Section 6, we may disclose any such confidential information if it is required to be disclosed by any applicable laws, regulations, or actions of any governmental agency or authority, provided that we shall: (a) to the extent as permitted by the applicable laws and regulations, inform the relevant Authorized Entity concerned prior to making any such disclosures and cooperate with the relevant Authorized Entity concerned in seeking a protective order or other protection and remedy as appropriate (including but not limited to redaction) prior to making any such disclosure; and (b) whenever it is possible to obtain confidential treatment for any such confidential information, request and implement such confidential treatment accordingly.
7. INTELLECTUAL PROPERTY OF CERTIZEN
7.1. We are the owner of all intellectual property rights in and to the Portal (including but not limited to its source codes and object codes, and the proprietary contents and information developed by us and provided therein; but save for any third party intellectual property subsisting therein, such as open source software/open source materials (“OSS”) that may be contained in or used for or in connection with our development and operation of the Portal).
7.2. Subject to your compliance with the rules and requirements of these Terms (or any revised Terms, if any), we grant you a limited, royalty-free, non-transferable and non-assignable license to access and use the Portal, during the relevant authorized period designated by HKAB to your organization pursuant to the Agreement, for the Purposes in accordance with these Terms. For avoidance of doubt, nothing in this Section 7 shall operate or be construed as to restrict, limit or prejudice your rights of use and exploitation of Merchant Data in the manner as stated under the above Clause 5.2 (whether during the subsistence of the said license or thereafter).
7.3. You shall not use our name, trade mark, service marks, trade dress, logo, device or other identifying marks or signs without our prior written consent, unless such use formed part of the Merchant Data (or your new or derivative works created based on or from any such Merchant Data, whether in whole or in part) that you are using as permitted under these Terms, or otherwise for identifying or indicating that we are the original source of the Merchant Data.
7.4. OSS – You acknowledge and agree that the Portal may contain certain OSS subject to the relevant applicable OSS license(s). To the extent that the Portal contain any OSS (if any), your use of such OSS is governed by the provisions of the applicable OSS license terms (and where necessary, you further confirm and undertake that you will separately and independently obtain the relevant licensing in relation to your use of such OSS). You further agree that subject to any applicable laws and to the maximum extent permitted under applicable laws, we have no obligations, liability or responsibility in relation to any OSS under these Terms. You warrant and agree that you will not, and will not permit any third parties to, use any such OSS that may be contained in the Portal in any manner that would require the Portal (whether in whole, in part or in any form whatsoever) to be distributed, or made available or issued to public free of charge or for a fee, in source code form or otherwise under any OSS license terms or otherwise subjected to any copyleft obligations.
8. INTELLECTUAL PROPERTY OF AUTHORIZED ENTITIES
8.1. The Authorized Entities are the owners of all rights (including but not limited to all intellectual property rights) in and to their respective User-Generated Contents (excluding any third party intellectual property subsisting therein, if any).
8.2. Notwithstanding any other provisions of these Terms, we acknowledge and agree that any and all rights, title and interests (including but not limited to intellectual property therein) in and to any User-Generated Contents that may be provided to us, or otherwise came into our possession, on or through the Portal, or otherwise under or pursuant to these Terms (whether by or on behalf of you, any Authorized Entity/Entities and/or its/their respective Users) shall be and remain the sole and exclusive property of, and owned by, the Authorised Entities respectively (and/or the relevant third party owners for any third party intellectual property subsisting therein, if any).
8.3. Subject to our compliance with the rules and requirements of these Terms (or any revised Terms, if any), the relevant Authorised Entities agree to grant us a limited, revocable, non-transferable and non-assignable license to use the User-Generated Contents under the limited and restricted manner as set out in the above Section 6. For avoidance of doubt, nothing in these Terms shall operate or be interpreted or construed or deemed as granting, vesting, assigning or otherwise transferring to us (and/or any other third parties) any rights, title or interests (whether now existing, or invented or created or arising in the future) in or to any or all User-Generated Contents (whether in whole or in part).
8.4. We can only refer to the name of the relevant Authorized Entities concerned in the context of identification of that entity in our liaison, discussions and actions with the relevant regulators and/or law enforcement authorities in our handling of their Users’ inquiries on potential fraud or unlawful cases in relation to verification of merchants and FPS app2app payments. Otherwise, we shall not use (whether for publicity or otherwise for any purposes whatsoever) any or all of the names, trade marks, service marks, trade dresses, logos, devices or any other identifying marks or signs of any or all of the Authorized Entities without obtaining the prior written consent or license of the relevant Authorized Entity/Entities concerned.
9. PRIVACY AND PERSONAL DATA
9.1. For the purpose of these Terms, reference to “personal data” means “Personal Data” as defined under the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) (“PDPO”),as amended from time to time.
9.2. Our handling of any Personal Data in connection with the Portal and under these Terms, including but not limited to any personally identifiable information of any Users and/or any other relevant data subjects concerned, shall be in accordance with the applicable laws and regulatory requirements in Hong Kong (including but not limited to the PDPO) as amended from time to time.
9.3. In the event any User-Generated Contents provided to us on or through the Portal may contain any personal data (if any), unless otherwise as permitted or exempted under any applicable laws or regulatory requirements in Hong Kong, you warrant and undertake that you shall ensure that the relevant consent for use and provision of their personal data (if and where applicable) have been duly obtained from the relevant data subjects concerned (e.g. the bank customers involved or affected by the suspected or disputed FPS transactions concerned) before providing any such personal data to us on or through the Portal.
10. DISCLAIMERS AND LIMITATIONS OF LIABILITY
10.1. You acknowledge and expressly agree that any access and/or use of the Portal, and any use and/or reliance of any Information (as further defined below), is solely at your own risks.
10.2. Certizen provides the Portal (and any and all information, data, database, articles, documents, materials and contents provided or contained therein, including but not limited to Merchant Data (collectively, “Information”)) on “AS IS” and “AS AVAILABLE” basis. Any Information (whether in whole or in part) may be subject to change and update on the Portal at any time without prior notice. To the fullest extent as permitted under any applicable laws, Certizen, HKAB, their respective holding or parent companies, any of their subsidiaries, affiliates, related or group companies, their sources and/or other third party data provider(s)/supplier(s) for any or all of these Information (collectively referred to herein as the “Certizen and HKAB Parties”), as the case may be, do not guarantee or provide any offers, conditions, representations and/or warranties (in any character, kind, form, way or manner whatsoever, whether expressed, implied, statutory or otherwise) for or in relation to the accuracy, completeness, reliability, timeliness, correctness, title, merchantability, suitability, fitness for any particular purpose or use, and/or non-infringement of the Portal, any Information and/or any parts thereof (as the case may be). To the fullest extent as permitted under any applicable laws, each and all of the Certizen and HKAB Parties (as the case may be) fully disclaim and accept no liability or responsibility whatsoever (whether in tort or contract or otherwise) for any loss or damage arising from or in connection with the Portal and/or any such Information (including but not limited to any inaccuracies or omissions).
10.3. To the fullest extent permitted under applicable laws, each and all of the Certizen and HKAB Parties (as the case may be) shall not be liable or responsible to any party (including but not limited to any Users) for any interruptions, inaccuracies, disruptions, errors or omissions (regardless of cause) in the Information (or any parts thereof), or for any loss or damage (whether direct or indirect, consequential, punitive, special or exemplary) resulting from use or reliance of any Information by any party (including but not limited to any Users).
10.4. No connections and/or services over the Internet can be completely secure. To this end, whilst we shall use our best endeavours to monitor and ensure that the Portal does not contain any computer virus or malware commonly known and detectable using commercially readily available anti-virus software tools (as agreed in writing by HKAB and us), we do not guarantee that the Portal will be secure or free from bugs or viruses, and we will not be liable to you for any damage which results from bugs or viruses. You are, and shall remain, fully responsible for the protection of your own devices, equipment, networks and systems with the relevant technology and safeguards, and should ensure your own use of appropriate virus protection software and/or other technical protection measures.
10.5. Neither Certizen nor HKAB shall be liable for any failure or delay in the discharge or performance of its obligations under these Terms due to circumstances or force majeure events beyond its/their reasonable control, including but not limited to any acts of God, floods, typhoons, rainstorms, other natural disasters, government restrictions, embargo, acts of any local government body or authority or any political subdivision thereof, strikes (except those instigated by any employees or personnel of the party seeking to rely on this Clause 10.5), acts of terrorism or war (whether declared or undeclared), civil commotions, civil disorders, pandemics, epidemics, public health emergencies, outbreak of virus or communicable diseases or any quarantine restrictions, network failures or telecommunications failures.
10.6. To the fullest extent permitted under any applicable laws, and without prejudice to the generality of the foregoing provisions under this Section 10, Certizen and/or HKAB (as the case may be) will not be liable to you under these Terms for any loss or damage (whether in contract, tort (including negligence), breach of statutory duty, or otherwise), even if foreseeable, arising under or in connection with:
10.6.1. your use of, or inability to use, the Portal; or
10.6.2. your use of, or reliance on, any Information on the Portal; or
10.6.3. any acts or omissions on Certizen and/or HKAB’s part in relation to any User-Generated Contents uploaded on or through the Portal, or otherwise came into its/their possession under or in connection with these Terms.
10.7. Without prejudice to the generality of the foregoing provisions under this Section 10, in particular, Certizen and/or HKAB (as the case may be) will not be liable for:
10.7.1. loss of profits, sales, business or revenue;
10.7.2. business interruption;
10.7.3. loss of anticipated savings;
10.7.4. loss of business opportunity, goodwill or reputation; or
10.7.5. any other indirect or consequential loss or damage.
10.8. Certizen and/or HKAB (as the case may be) do not in any way exclude or limit their liability to you where it would be unlawful to do so. Nothing in these Terms limits or excludes the liability of Certizen and/or HKAB (as the case may be) for death or personal injury caused by its/their negligence or negligence of its/their employees, agents or subcontractors, and/or its/their fraud or fraudulent misrepresentation.
11.1. Notwithstanding the provisions of Section 10 above (or any of them), we hereby agree and undertake to indemnify HKAB, the Authorized Entities and the Users (“Indemnified Parties”), and keep the Indemnified Parties harmless and fully and effectively effectively indemnified on demand against any and all losses, damages, claims, demands, actions, costs (including but not limited to legal or attorney fees), charges, expenses and liabilities of whatsoever nature incurred by the Indemnified Parties (or any of them), arising from, out of or in relation to any claim or allegation by any third party that is based on or in connection with the use of the TLS List (as defined in the Agreement) for or in relation to any FPS Case Enquiries (as defined in the Agreement). In any event, Certizen’s cumulative total liability under this Clause 11.1 shall be limited to 100% of the total amount that we received from HKAB pursuant to the Agreement.
11.2. Notwithstanding the provisions of Section 10 above (or any of them), we hereby agree undertake that in the event of any claims or allegations by any third parties that the Portal (or any parts or components thereof) is infringing (“third party IP claims”), we shall fully indemnify the Indemnified Parties, and keep the Indemnified Parties harmless and fully and effectively indemnified, on demand against any and all liabilities, losses, damages, demands, claims, actions, costs (including but not limited to legal or attorney fees), charges and expenses of whatsoever nature that may be suffered or incurred by the Indemnified Parties (or any of them), arising from or in connection with any third party IP claims.
12. TERMINATION BY CERTIZEN AND/OR HKAB
12.1. If we and/or HKAB (as the case may be) determine, in our reasonable discretion, that there has been a breach of these Terms by your access and/or use of the Portal, or if we are instructed to do so by HKAB pursuant to Clause 3.7 above, we and/or HKAB (as the case may be) may take the relevant actions as appropriate, including but not limited to all or any of the following (and in any case, without prejudice to any other rights or remedies that may be available to us and/or HKAB, whether under these Terms or otherwise) by providing our relevant notice in writing to you with immediate effect (in the case of any of the below circumstances that shall take immediate effect) or by [thirty (30)] days written notice (in any other cases), as the case may be:
12.1.1. immediate, temporary or permanent withdrawal or termination of your right of access and/or use of the Portal (including suspension of your User account);
12.1.2. immediate, temporary or permanent take-down and removal of any User-Generated Contents uploaded by you to the Portal;
12.1.3. issue warning or breach notice to you to require your rectification of the breach concerned (if it is capable of being rectified) within the prescribed period and directions set out in that notice;
12.1.4. take legal proceedings against you for your indemnity or reimbursement of all our costs on an indemnity basis (including but not limited to all the reasonable legal and administrative costs) resulting from the breach;
12.1.5. take further legal action against you in relation to the breach, and apply to the relevant courts for the relevant relief and remedies as appropriate, including but not limited to injunctive relief; or
12.1.6. any other actions for the protection and enforcement of our rights as we and/or HKAB may be advised by their respective legal advisors to take in the case concerned.
12.2. You acknowledge and agree that in the event of any suspension or termination of your access and/or use of the Portal, you shall not be entitled to any refund of, and shall continue to be liable to HKAB for, any subscription fees paid or due to be paid for the full term of subscription in accordance with Clause 3.7 above.
12.3. Your license and rights to access and/or use of the Portal shall immediately cease upon the expiration of the relevant authorized period designated by HKAB to your organization (unless such period is extended by HKAB’s written confirmation) or any earlier termination of these Terms in accordance with any relevant provisions of this Section 12. We will immediately revoke your access rights and User account upon the occurrence of such circumstances.
13. TERMINATION BY AUTHORIZED ENTITIES AND USERS
13.1. Without prejudice to any other rights or remedies that may be available to you (whether under these Terms or otherwise), you may terminate these Terms and/or your User account by written notice to us and HKAB, and discontinuing your use of such User account and/or Portal, at any time (whether with or without cause). We will immediately revoke your access rights and User account upon our receipt of your written notice.
13.2. Notwithstanding your election for early termination under Clause 13.1 above, you acknowledge and agree that you shall not be entitled to any refund of, and shall continue to be liable to HKAB for, any subscription fees paid or due to be paid for the full term of subscription in accordance with Clause 3.7 above.
14. CONSEQUENCES OF TERMINATION
14.1. Subject to the below provisions under this Section 14, upon termination of these Terms (for whatever reason) under any of the relevant provisions under Sections 12 or 13 above (as the case may be), no party shall have any further obligations to the other parties (or any of them) under these Terms.
14.2. Termination of these Terms shall operate without prejudice to any rights and/or remedies which may have accrued to any party under these Terms.
14.3. Expiration or termination of these Terms against any particular Authorized Entity and/or any particular User shall not affect or impact the subsistence and the force and effect of these Terms (or any parts thereof) against other Authorized Entities and/or other Users.
14.4. Any provisions of these Terms which, in order to give effect to their meaning, need to or intended to survive the expiration or termination of these Terms shall remain in full force and effect after such expiration or termination (as the case may be).
14.5. Upon the expiry or termination of these Terms for any reason, we and/or HKAB (as the case may be) shall have the right to continue to use any User-Generated Contents that you have previously uploaded or provided on or through the Portal, without any further reference, acknowledgement, credit or payment to, or consent from, you or any authors of such User-Generated Contents, subject always to the relevant provisions of these Terms (to the extent that such particular provisions, if any, survive pursuant to Clause 14.4 above).
15. LINKS TO THIRD PARTY SITES ON THE PORTAL
16. GENERAL AND MISCELLANEOUS
16.1. Assignment – Neither party shall, without the prior written consent of the other party, assign, transfer, vest, delegate or otherwise dispose of all or any of its rights and/or obligations under these Terms to any third party.
16.2. Headings – The headings and sub-headings of the provisions herein are inserted for convenience of reference only and they are not intended to be part of or to affect the meaning or interpretation of any of the provisions of these Terms.
16.3. Entire Agreement – These Terms supersede any promises, communications, representations, arrangements, understandings or agreements made or existing between the parties hereto prior to these Terms, and shall constitutes the entire understanding between the parties hereto.
16.4. Parties’ Relationship – Nothing in these Terms shall be deemed or operate to form or constitute any partnership, business relationship, associations or joint venture between the parties, nor constitute any of the parties’ agent, principal, subsidiary, parent, employee or employer of the other party or any other third parties for any purpose. These Terms set out a non-exclusive arrangement and do not create any exclusivity of any nature between the parties.
16.5. Severance – If any one or more of the clauses (or any parts thereof) contained in these Terms should be held by any court of competent jurisdiction to be unlawful, void, or unenforceable, such clause(s) (or such part(s) thereof) shall, to the extent required, be severed from these Terms and rendered ineffective as far as possible without, in any way, affecting the validity or enforcement of the remaining clauses of these Terms.
16.6. No waiver – No clause of these Terms shall be deemed waived, unless such waiver shall be in writing and signed by the party against which the waiver is sought to be enforced. The waiver by either of the parties of any breach of any clause, or part clause, of these Terms by the other party shall not be construed to be either a waiver of any succeeding breach of any such clause or a waiver of the provision itself. No single or partial exercise of any right or remedy shall prevent or restrict further exercise of that or any other right or remedy.
16.7. Third Party Rights – Except for HKAB or as expressly provided for under these Terms, a person who is not a party to these Terms shall have no rights under these Terms and/or the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong) to enforce any of the provisions of these Terms. Any rights that may be conferred on any third party by these Terms shall exclude the right to assign, and their consent is not required to rescind or vary these Terms (unless otherwise expressly provided to the contrary under these Terms).
16.8. Governing Law and Dispute Resolution
16.8.1. These Terms shall be governed by and construed in accordance with the laws of Hong Kong.
16.8.2. In the event of any disputes, controversies, differences or claims arising out of, relating to or in connection with these Terms (whether contractual or non-contractual), including but not limited to the existence, validity, interpretation, performance, breach, or termination thereof (“Dispute”),such Dispute shall, at the request of either party by serving on the other party thirty (30) days’ written notice (“Notice Period”),be referred to and finally resolved by arbitration in Hong Kong, and administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the then effective HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted (“HKIAC Rules”). The law of this arbitration shall be the laws of Hong Kong. The seat of the arbitration shall be Hong Kong. The arbitration proceedings shall be conducted in English. The number of arbitrators shall be one (1) appointed by HKIAC in accordance with the HKIAC Rules.
16.8.3. Any decision or award of the arbitral tribunal shall be final and binding upon the parties to the arbitration proceedings. During the Notice Period, the parties shall attempt to settle the Dispute in good faith. Nothing in this Section 16 shall prevent either party from seeking the remedies of injunction (including interim/interlocutory and permanent injunctions), specific performance or any other equitable relief for any threatened or actual breach of these Terms from any court of competent jurisdiction, and any such request shall not be deemed or construed as incompatible with the agreement to arbitrate or a waiver of the right to arbitrate, or as incompatible with the agreement to settle any Dispute in good faith under this Section 16. For the avoidance of doubt, the arbitral tribunal has the authority and power to grant interim measures, including but not limited to interim/interlocutory injunctive relief, whether in the form of an award or in any another form.
Version: 2 March 2020