1. Definitions

   In this Agreement, the following words have the following meanings unless the context otherwise requires:

   Agreement means these Terms and Conditions together with the application form for the Services;

   Charges means the charges payable by the Subscriber pursuant to the terms of this Agreement, including, without limitation, all installation charges, monthly service fees, deposits and other charges;

   Commencement Date means the date on which the Services first become available for use by the Subscriber;

   Intellectual Property Rights means copyright and all other legal and beneficial intellectual and industrial property rights (including, without limitation, patent and trade secret rights) throughout the world and all know-how;

   Services means hosting for the Subscriber's Web site and related technical and support services provided by MasterMate or its designate to the Subscriber from time to time pursuant to this Agreement;

   Subscriber means the company or organisation identified on the application form whose application to be provided with the Services has been accepted by MasterMate;

   Subscriber Material means the text, graphics, photographs and other material supplied by the Subscriber for inclusion in its Web site;

   MasterMate Master Mate Limited; and

   System means MasterMate or its designate's connected system of servers used to host Web sites together with all proprietary software and other coding developed by MasterMate in order to provide services to subscribers, but shall not include Subscriber Material.

2. Scope of Agreement

   MasterMate or its designate will provide to the Subscriber, and the Subscriber will take and pay MasterMate or its designate for the provision of, the Services for the term of this Agreement subject to and in accordance with the terms and conditions of this Agreement.

3. Commencement and Term

   This Agreement will be for an initial term of twelve (12) months from the Commencement Date (the Initial Term). After the Initial Term, this Agreement will continue until terminated pursuant to Clause 11.

4. Payment

   　

   1. In consideration for the provision of the Services, the Subscriber will pay to MasterMate or its designate the Charges notified by MasterMate or its designate to the Subscriber from time to time. 
   2. MasterMate or its designate will issue annual invoices for the Charges to the Subscriber by post, electronic mail and/or facsimile transmission. All Charges are due and payable on presentation of the invoice therefor.
   3. MasterMate or its designate may charge a late payment charge calculated at the rate of 1.5% per month pro rata on a daily basis on any Charges not paid within 30 days after the date of the invoice therefor.
   
   
5. Obligations of MasterMate or its designate
   
   
   1. MasterMate or its designate will during the term of this Agreement provide the Services to the Subscriber in accordance with the terms and conditions of this Agreement. MasterMate or its designate will use reasonable endeavours to provide the Services within the timescales agreed (if any). However, such timescales are estimates only and MasterMate or its designate will in no event be liable for any costs, charges, losses or expenses of any kind arising out of delays in meeting delivery or performance dates.
   2. MasterMate or its designate will comply with the terms of its Personal Information Collection Statement and the provisions of the Personal Data (Privacy) Ordinance in dealing with the personal data of any of the Subscriber's employees which it collects.
   
   
6. Obligations of the Subscriber
   
   1. Where access to the Subscriber’s premises is required for the provision of any part of the Services then the Subscriber will allow MasterMate or its designate’s personnel full and complete access to such premises.
   2. The Subscriber will provide MasterMate or its designate with all necessary co-operation, information, equipment, data and support which MasterMate or its designate may reasonably require for the provision of the Services at such times as MasterMate or its designate requests.
   3. Unless The Subscriber uses MasterMate for Web designing, The Subscriber will be solely responsible for designing its Web site or procuring the services of a third party to design the same. MasterMate or its designate will have no responsibility in relation to Web site design. 
   4. The Subscriber will be solely responsible for the development and provision to MasterMate or its designate of all Subscriber Material. The Subscriber will be solely responsible for obtaining and paying for any licences, permissions or consents necessary or desirable for the inclusion of any advertising material, copyright work or trade or service mark or the name or likeness of any individual in the Subscriber Material.
   5. The Subscriber warrants and undertakes that no part of the Subscriber Material will infringe any Intellectual Property Rights nor will it or any part of it be obscene, indecent, seditious, offensive, defamatory, discriminatory nor will it breach the confidence of MasterMate or its designate or of any third party.
   6. The Subscriber will not use the Services or any part of them for the transmission of any unsolicited advertising or promotional information.
   7. The Subscriber will at all times when using the Services comply with all applicable laws.

   　

7. Maintenance and Suspension of Service

   　

   1. MasterMate or its designate may, without terminating this Agreement and without liability, immediately suspend part or all of the Services until further notice if:
      1. MasterMate or its designate would be permitted to terminate this Agreement under Clause 11.2 or 11.3.1; or
      2. MasterMate or its designate is obliged to comply with an order, instruction or request of government, regulatory body or other competent authority; or
      3. MasterMate or its designate needs to maintain or upgrade the System. MasterMate or its designate will give the Subscriber the maximum period of notice practicable in the circumstances if it needs to suspend such Services for this reason; or
      4. MasterMate or its designate needs to repair a fault in the System as a result of any unplanned outage, downtime or other reason beyond MasterMate or its designate’s control. The Subscriber acknowledges that MasterMate or its designate may not be able to give the Subscriber any notice of its need to suspend such Services for this reason.
   2. MasterMate or its designate will use reasonable endeavours to carry out maintenance so as to cause as little disruption as reasonably practicable to the ability of users to access the Subscriber's Web site.
   3. If MasterMate or its designate suspends such Services due to any event in Clause 7.1.1:
      1. this will not exclude MasterMate or its designate's right to terminate this Agreement later in respect of the same or any other event; and
      2. the Subscriber will, in addition to paying any overdue Charges, be liable to pay MasterMate or its designate a fee as may be notified by MasterMate or its designate from time to time to restore such Services; and
      3. the Subscriber acknowledges that restoration of the Services may take up to 30 days after receipt by MasterMate or its designate of payment of the Services restoration fee and any overdue Charges.
8. Intellectual Property Rights
   1. All legal and beneficial interest in the Intellectual Property Rights related to the System will be and remain the property of MasterMate.
   2. All legal and beneficial interest in the Intellectual Property Rights developed by MasterMate or its designate in connection with the provision of the Services will be and remain the property of MasterMate. MasterMate or its designate hereby grants to the Subscriber a non-exclusive licence for the duration of this Agreement to use such Intellectual Property Rights for the purpose of maintaining its Web site.
   3. All legal and beneficial interest in the Intellectual Property Rights in Subscriber Material will be and remain the property of the Subscriber or third party owner. The Subscriber hereby grants to MasterMate or its designate a non-exclusive, royalty free licence for the duration of this Agreement to use such Intellectual Property Rights for the purpose of providing the Services.
9. Confidentiality
   1. Neither party shall use, copy, alter, adapt, disclose or part with possession of any information or data of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is of a confidential nature (Information) except as strictly necessary to perform its obligations or exercise its rights under this Agreement, provided that this obligation shall not apply to Information which:
      1. the receiving party can prove was in its possession at the date it was received or obtained; or
      2. the receiving party obtains from a third party with good legal title thereto; or
      3. comes into the public domain otherwise than through the default or negligence of the receiving party; or
      4. is independently developed by or for the receiving party; or
      5. the receiving party is required to disclose under any applicable law or regulation or to any government agency or court of competent jurisdiction, to the extent of such disclosure only.
   2. Each party shall ensure that its employees and authorised sub-contractors who have or may have access to Information are bound by undertakings in substantially the same terms as Clause 9.1.
   3. The obligations of confidentiality contained in this Clause 9 shall continue in force for three years after the termination of this Agreement for any reason.
10. Service Cancellation

    For the avoidance of doubt, if the Subscriber cancel the Service before Commencement Date (the 'Initial Term') for any reason, the Subscriber shall be liable to pay MasterMate or its designate the penalty charges equals to one month subscription fee and any extra costs incurred by MasterMate or its designate for such Service Cancellation.

11. Termination
    1. The Subscriber may at any time after the expiry of the Initial Term terminate this Agreement without cause by giving not less than two (2) month's written notice to MasterMate or its designate.
    2. MasterMate or its designate may terminate this Agreement at any time by giving not less than one (1) month's written notice to the Subscriber.
    3. MasterMate or its designate may at any time terminate this Agreement forthwith on notice to the Subscriber if the Subscriber is in breach of Clause 6.5 or 6.6.
    4. Without prejudice to any other rights or remedies it may have (whether under this Agreement or at law), either party may terminate this Agreement immediately by serving written notice on the other if:
       1. the other party commits a breach of any material obligation under this Agreement and, in the case of a remediable breach, fails to remedy the breach after receiving 14 days written notice to do so. For these purposes, a failure by the Subscriber to pay any Charges within 30 days after they are due will constitute a material breach; or
       2. the other party becomes Insolvent.
    5. In this Clause, "insolvent" means the appointment of, or the application to a court for the appointment of, a liquidator, provisional liquidator, receiver or manager to that party, the entering into a scheme of arrangement or composition with or for the benefit of that party's creditors generally, any reorganisation, moratorium or other administration involving the creditors or any class of the creditors of that party, a resolution or proposed resolution to wind up that party, or that party becoming unable to pay its debts, or being deemed to have become unable to pay its debts, as and when they fall due within the meaning of Section 178 of the Companies Ordinance.
12. Consequences of Termination
    1. Termination of this Agreement will not relieve either party of any liability for breach of this Agreement or as may otherwise be established.
    2. The provisions of Clauses 9, 12, 14 and 15 of this Agreement will continue in force despite the termination of this Agreement.
    3. If MasterMate or its designate suspends the Services pursuant to Clause 7.1 or terminates this Agreement for any reason pursuant to Clause 11, the Subscriber will have no right to the return of any data stored on the System.
    4. Within not more than 30 days after termination of this Agreement for any reason MasterMate or its designate will erase the Subscriber Material from the System.
    5. Within not more than 30 days after termination of this Agreement for any reason the Subscriber will give MasterMate or its designate full and free access to its premises to repossess any equipment and software provided by MasterMate or its designate.
13. Limitation of Liability
    1. Nothing in this Agreement will exclude or restrict either party's liability for death or personal injury resulting from its negligence or that of its employees while acting in the course of their employment.
    2. Subject to Clause 13.1, MasterMate or its designate's liability in contract, tort or otherwise (including negligence) however arising out of or in connection with this Agreement will in respect of any one or more incidents not exceed the total Charges received by MasterMate or its designate from the Subscriber in the month in which the incident occurs.
    3. Subject to the express terms of this Agreement, MasterMate or its designate will not be liable to the Subscriber for any indirect or consequential loss, whether arising from negligence, breach of contract or otherwise, including without limitation any loss of revenue, profits, business, contracts or data, or any anticipated savings, business interruption or downtime. Without prejudice to the generality of the foregoing, MasterMate or its designate will not be liable for any failure of the Subscriber's Web site to achieve any anticipated volume of page views, hits or other measure of traffic or for any loss of business caused by the Subscriber’s Web site not being easily found by the normal browsing of search engines.
14. Indemnities
    1. The Subscriber will indemnify and keep indemnified MasterMate or its designate from and against any and all actions, claims, costs, losses, damages and expenses arising out of the Subscriber's use of the Services.
    2. The Subscriber will indemnify and keep indemnified MasterMate or its designate against all claims, proceedings and costs (including legal costs) arising from infringement or alleged infringement of any third party Intellectual Property Rights by reason of MasterMate or its designate's use of the Subscriber Material.
15. Warranties

    No warranties are given by MasterMate or its designate in relation to the Services or the use thereof by the Subscriber and MasterMate or its designate gives no guarantee of end to end bandwidth capacity or availability on the Internet. To the extent permitted by law, MasterMate or its designate excludes all implied warranties including, without limitation, as to quality and fitness for purpose of the Services.

16. Assignment

    The Subscriber shall not assign its rights under this Agreement, in whole or in part, without the prior written consent of MasterMate or its designate. MasterMate or its designate may assign its rights under this Agreement at any time.

17. Notices
    1. Any notice, invoice or other document which may be given by either party under this Agreement will be deemed to have been duly given if left at or sent by prepaid post, facsimile transmission or electronic mail to the other party's registered office or any other address (including an electronic mail address) notified in writing in accordance with this Clause as an address to which notices, invoices and other documents may be sent.
    2. Any such communication will be deemed to have been received by the other party on the day of delivery (if left), three days after the date of posting (if sent by prepaid post), one day after the date of transmission (if sent by facsimile) and on the date on which the message is received in the recipient's electronic mailbox (if sent by electronic mail).
18. Waiver

    Failure or delay by MasterMate or its designate to enforce any of its rights under this Agreement, or the giving of additional time for performance or other indulgence, is not a waiver of such right unless MasterMate or its designate acknowledges the waiver in writing, nor will any single or partial exercise of any remedy or right preclude any further exercise of the same or the exercise of any other right. No waiver of any particular breach of the provisions of this Agreement will operate as a waiver of any repetition of such breach.

19. Severability

    If any provision of this Agreement which is not of a fundamental nature is found to be unenforceable or illegal, it shall be severed from this Agreement and will not affect the enforceability of the remainder of this Agreement. In this event the parties will use reasonable endeavours to agree any lawful and reasonable changes to this Agreement which may be necessary to effect as closely as possible the commercial intent of this Agreement.

20. No Partnership or Agency

    Nothing in this Agreement will constitute or be deemed to constitute a partnership between the parties. Save as may be expressly agreed by the parties, neither party shall be the agent of the other.

21. Amendments

    MasterMate or its designate may at any time amend or vary the terms of this Agreement, the Services provided under it and any Charges therefor by giving the Subscriber not less than 30 days prior written notice of such amendments or variations. For the purposes of this Clause, publication of such amendments or variations on MasterMate or its designate's Web site will constitute written notice.

22. Entire Agreement

    This Agreement represents the entire understanding between the parties in relation to its subject matter and supersedes all prior agreements between the parties whether oral or written.

23. Governing Law and Jurisdiction

updated July 1, 2000