The Mobile Service Agreement’s General Terms and Conditions
1. The contracts signed by any customer (“Customer”) specified at the back of the contracts, who applies to Multibyte Info Technology Limited(“MB”) for services listed at the back of the contracts – mobile phone service, value-added services (including, but not limited to, call waiting, call forwarding, caller number display, conference calling, airtime restriction, voicemail, secretarial, roaming, long-distance calling, data and fax services, information enquiry, short message service (“SMS”) (collectively, “Value-Added Services”)) or other related services provided by MB and other miscellaneous services(collectively “Mobile Services”) and the purchase of mobile phones, other communication devices, other wireless devices or accessories (collectively “Mobile Equipment”), are agreed with MB and to be subject to the terms and conditions set out in this agreement (“this Agreement”).
2. Sale of Mobile Equipment
2.1 A Customer must pay to MB for the charges related to the purchase of the Mobile Equipment or any unpaid balances when the Mobile Equipment is delivered. If a Mobile Equipment is delivered to the Customer but the Customer has yet to settle the account or any outstanding payment, MB retains the right to the related deposit and to reacquire the right to the Mobile Equipment from the Customer.
2.2 MB retains the right to the Mobile Equipment until the Customer has paid in full of all charges related to the purchase of the Mobile Equipment. However, any related risk of loss is passed on to the Customer when the Mobile Equipment is delivered to the Customer. MB will not provide any refund or exchange the Mobile Equipment for any other Mobile Equipment to the Customer.
2.3 The warranty of the Mobile Equipment shall be provided by the manufacturer directly according to its standing warranty policy. MB assumes no responsibility in providing any repair or maintenance services to the Customer.
2.4 Expected delivery date of the Mobile Equipment is only estimated. The time of delivery of the product is not a material term of this Agreement.
3. Mobile Services
3.1 MB will provide the Mobile Services according to the terms and conditions set forth herein and in the relevant contract with the Customer. The Customer must use a Mobile Equipment with the necessary functionalities to enjoy the Mobile Services.
3.2 In addition to this Agreement, MB prohibits the Customer from sending unauthorized promotional SMS, emails, images or data (individually, “Message” and collectively, “Messages”) to others. If the Customer has done so without the recipient’s consent, MB has the right to suspend or terminate the Mobile Services.
3.3 The Customer agrees that if he/she intends to send a Message of a promotional or similar nature to another person, he must obtain the express consent of the recipient for receiving such promotional Message before sending. Upon the request by MB, the Customer must produce the express consent received from the recipient.
3.4 If MB receives a complaint from a recipient about the Customer sending unsolicited Message, MB may (in any order):
(a) notify the Customer verbally or in writing of the complaint received;
(b) require the Customer to respond to the complaint received within three working days of receiving such notification; and
(c) block the Customer from sending any Message or suspend the Customer’s Mobile Services until the complaint has been satisfactorily resolved.
3.5 The Customer acknowledges and agrees that:
(a) MB does not provide directory entries or directory services for Mobile Services;
(b) MB is under no obligation to provide any Mobile Services to the Customer even though a mobile phone number (“Number”) has been allocated to the Customer;
(c) in the event that a Number cannot be ported from an operator’s network to MB’S network for whatever reasons, MB may assign a new Number to the Customer for his/her Mobile Services;
(d) to ensure the quality of the Mobile Services, MB may at any time take all such measures that are necessary to the service features provided under the Mobile Services, the subscriber identity module card (“SIM Card”) or Mobile Equipment including requiring the Customer to use a password to access the Mobile Services;
(e) the Customer shall not use or is not allowed to use the Mobile Service for the purpose other than application of the service;
(f) the Customer does not acquire any rights whatsoever in any Number provided by MB and MB may modify, withdraw, charge or reallocate any Number provided to the Customer;
(g) when the Customer provides information to MB, the information must be complete, true and up-to-date in all respects;
(h) save for the terms and conditions herein, the Customer must abide by all laws, rules and regulations applicable to the Customer (“Applicable Laws”);
(i) the Customer must not, and must not attempt to, hack, break into, access or by other unauthorized means use, any part of the Mobile Services, data areas or servers for which the Customer has not been authorized by MB;
(j) the Customer must not tamper, copy, modify or in some other way seek to alter, or allow any other person to tamper, copy, modify or seek to alter, the network, Mobile Equipment or a SIM Card;
(k) the Customer must not use the Mobile Services in:
i) any unlawful, fraudulent, improper, unauthorized, harassing, discriminatory, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable manner;
ii) a way to encourage conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any Applicable Laws;
iii) a way to infringe any third party’s intellectual property rights; or
iv) such a way that may be harmful or detrimental to MB or its reputation; and
(l) MB is not responsible for any acts or omissions arising from the Customer’s use of the Mobile Services, including those more particularly described in clause 3.5(k) above.
3.6 If the Customer uses the Value-Added Services, it will be charged at airtime rate.
3.7 If the Customer decides to cease subscribing to a Value-Added Service, MB may, as a result, be entitled to cease offering any other Value-Added Service to the Customer.
3.8 The Customer can apply to MB to obtain details of his/her voice calls for the previous three months at a fee as prescribed by MB from time to time.
3.9 The Customer acknowledges that if the Customer applies for the China long distance roaming service from the Number provided by MB and use the Number in the boundary of the jurisdiction of the People’s Republic of China (“PRC”) (excluding the Hong Kong Special Administrative Region of the PRC (“Hong Kong”), the Macau Special Administrative Region of the PRC and Taiwan) for any Mobile Services, the Customer must pay any associated roaming charges and other related fees.
3.10 Roaming service is only available to MB’S list of applicable countries. MB has the right to change the list of countries from time to time. MB does not warrant the suitability or quality of any roaming service used by the Customer.
4. SIM Card
4.1 MB will issue to the Customer a SIM Card for his/her Mobile Equipment to enable access to Mobile Service.
4.2 The SIM Card remains at all times the property of MB and must be returned by the Customer to MB upon demand or termination of this Agreement.
4.3 MB may in its sole discretion replace free of charge for the Customer any SIM Card damaged due to normal wear and tear. MB will charge the Customer a replacement or repair fee for a SIM Card:
(a) damaged due to misuse, negligence or willful damage on the part of the Customer; or
(b) lost by, or stolen from, the Customer.
4.4 The Customer must report any loss of his/her Mobile Equipment and/or SIM Card to the police (or similar authority if the loss occurs outside Hong Kong) and MB within 24 hours of the Customer becoming aware of such loss.
4.5 The Customer will be liable for all charges connected with the lost or stolen Mobile Equipment and/or SIM Card until MB disconnects all Mobile Services to the lost or stolen Mobile Equipment and/or SIM Card, following the Customer’s report of the loss or theft in accordance with clause 4.4 above.
4.6 If the lost Mobile Equipment and/or SIM Card are found, MB may, following a request by the Customer, reconnect all Mobile Services related to the recovered Mobile Equipment or SIM Card provided that the Customer has paid all outstanding or new charges (including any reconnection fee) and, at MB sole discretion, a pre-service inspection of the Mobile Equipment and/or SIM Card by MB or any person acting for it and on its behalf (including any of its director, officer, employee, agent, contractor or professional adviser) (“Representative”) has been made.
4.7 MB may refuse the Customer’s request for reconnection of the Mobile Services and/or SIM Card under clause 4.6 above if, in MB opinion, the International Mobile Equipment Identity (“IMEI”) number of the recovered Mobile Equipment or the pre-programmed data of the SIM Card has been copied, modified or otherwise tampered with.
5.1 The Customer agrees to pay MB for variable charges related to Mobile Services provided. These charges may include, but not limited to, monthly service fee, registration, cancellation, port-in mobile phone number, reconnection fee and other service charges (including fees received by MB on behalf of others (” Charges”). MB may change any fees after giving a 30-day notice period.
5.2 Except otherwise stated at the back of the relevant contract, the Customer must pay the monthly service charge to MB starting from the date when the Mobile Services are provided. All payments should be paid in advance.
5.3 All Charges must be paid by the due date indicated on the invoice issued by MB. All the Charges are calculated based on Hong Kong dollars and payment methods should be used in accordance with the provisions set out in the invoice.
5.4 The Customer must bear all the risk of payment through email, electronic payment or internet payment. The Customer will not have fulfilled his/her obligations unless payment is received and cleared by MB.
5.5 Enquiries or disputes concerning any invoice must be made to MB on or before the due date stated in the invoice, however nothing in this clause relieves the Customer from payment obligation on or before the payment due date of the invoice. If there is no enquiry on the Charge before the due date, the invoice is deemed to be correct and accepted by the Customer.
5.6 In the event of any dispute between MB and the Customer relating to any Charges billed by MB, the books and records of MB are conclusive evidence of all such Charges incurred by the Customer.
5.7 Time is of the essence in this Agreement in respect of the payment obligation of the Customer. If the Customer fails to pay the Charges by the due date, MB will be entitled to charge interest at the rate of 2% per month on the outstanding Charges until payment of the Charges is made in full.
5.8 For the Customer who registers more than one account with MB, MB has the right to transfer any credit balance in any account to another account with outstanding charge payable.
5.9 The Customer is liable for the Charges related to the Mobile Services regardless of whether the service is used by the Customer, or whether a third party has been gained permission from has been known to the Customer to use the services, or whether the transmission of mobile calls, SMS, or other Mobile Services was successful.
5.10 MB may impose maximum spending for the Customer from time to time. If the Customer has reached the maximum spending limit, MB may temporarily suspend his/her Mobile Services.
5.11 Any Charges are based on the entire billing month as the billing unit. To avoid any doubt, under all circumstances where this Agreement is terminated / expired / Mobile Services are temporarily suspended (regardless of whether the termination date / expiry date / suspension date is before the end of the billing period), the Customer is still liable for all the Charges for the entire billing period. Payments made will not be refunded.
5.12 The Customer acknowledges and agrees that (regardless of whether it is only partial) the Mobile Services provided is subject to the contracts between MB and third party network providers and/or data service and content providers. Notwithstanding the terms and conditions of this Agreement, if the third party network provider and/or data service and content provider demands payment for services rendered, MB has the right to collect reasonable amount from the Customer as soon as practicable.
6.1 The Customer agrees that MB may, at any time, require the Customer to provide a security deposit to MB for payment of the Charges of the Mobile Services under this Agreement or any other agreement; and for any loss or damage incurred or sustained by MB as a result of a breach by the Customer of any of the terms and conditions of this Agreement or any other agreement made between the Customer and MB. The amount of any deposit will be solely determined by MB. MB may, without prejudice to any other rights or remedies under this Agreement, deduct from any deposit.
6.2 Subject to clause 6.1 above, the deposit will be refunded to the Customer by MB without interest after the termination of this Agreement and after the settlement by the Customer of all outstanding Charges payable under this Agreement or any other agreement or any claims brought by MB in respect of a breach by the Customer of any of the terms and conditions of this Agreement or any other agreement.
6.3 The Customer acknowledges that he/she shall bear own risk on the deposit paid or the Charge paid in advance. In case of the liquidation of MB, any deposit or prepayment may not be refunded or returned to the Customer. The Customer’s right to the refund of any deposit or the return of prepayment will be subject to the terms and conditions of this Agreement and, all the Applicable Laws governing the liquidation of companies in Hong Kong.
7.1 MB may, in its absolute and unfettered discretion, immediately terminate this Agreement or temporarily suspend any Mobile Services at any time if:
(a) any Charges or sums payable by the Customer under this Agreement remain unpaid after becoming due;
(b) the Customer died, or becomes insolvent or bankrupt or appears reasonably likely to become so;
(c) the Charges for the use of the Mobile Services exceed the credit limit set by MB from time to time;
(d) MB’S credit checks reveal the Customer having a poor credit history;
(e) the Customer commits a breach, or MB reasonably believes that the Customer is likely to commit a breach, of any of the terms and conditions of this Agreement;
(f) the Customer or any other person uses the Mobile Equipment or the Mobile Services in contravention of clause 3.5 above or for any illegal or improper purpose, or the Customer acts in a way, which in the reasonable opinion of MB, causes a nuisance or
harassment to MB, any of its Representatives or other Customers;
(g) any of the information specified by the Customer on the application form or provided by the Customer in any other part of this Agreement is found to be false or misleading;
(h) the Customer has successfully ported his Number to another phone/mobile services operator;
(i) any of the telecommunications or other licenses held by MB or other third party
network providers are terminated, revoked, expired or not renewed;
(j) MB reasonably believes it is necessary to suspend any Mobile Services to:
i) comply with an order, instruction, determination, statement, direction or similar pronouncement of a government or regulatory authority;
ii) carry out emergency or scheduled maintenance, repair or upgrading of any Mobile Services, or any equipment, facility or any part of the network of MB or third party network providers;
iii) render any repair service to Mobile Equipment of the Customer;
iv) reduce or prevent fraud or interference with any Mobile Services; or
v) resolve a complaint as described in clause 3.4 above.
(k) MB or the third party network provider ceases to provide any Mobile Services.
7.2 The exercise of MB’S right to suspend or terminate the Mobile Services under this clause 7 does not affect any of MB ’s existing rights, or claims or other remedies available to MB and suspension of any Mobile Services does not constitute a waiver of MB’S right to later terminate this Agreement.
7.3 In the event that the Customer receives the Mobile Services from MB for more than one piece of Mobile Equipment and the Customer fails to pay for any Charges by the due date for any Mobile Equipment or any Mobile Services, MB may immediately suspend any Mobile Services in respect of any or all of the Mobile Equipment.
7.4 This Agreement or a value-added service may be terminated without cause: (a) by Customer giving to MB 30 days’ prior written notice or payment in lieu of notice to that effect. If Customer notifies MB in accordance with this clause 7.4(a), Customer must immediately pay MB all Charges payable up to the date of termination; or (b) by MB by giving to Customer 30 days’ prior written notice.
7.5 If for any reason this Application Form or a Supplemental Agreement expires or terminates or a Mobile Service is terminated: (a) Customer must pay MB all outstanding bills by the due date and within 30 days of request for payment, all other amounts outstanding as at the date of, or arising as a result of, expiry or termination (including any Early Termination Fees); and (b) all rights that a party has accrued before expiry or termination continue.
7.6 If: (a) Customer terminates this Agreement before the expiry of any Minimum Contract Period; or(b) MB terminates this Agreement under clause 7.1, the remaining balance of any Rebate or benefit will be absolutely forfeited to MB. In addition, if demanded by MB, Customer must pay all outstanding Charges and Early Termination Fee based on monthly fee multiplied by the remaining months or $100 multiplied by the remaining months of the Minimum Contract Period, whichever is higher, to MB immediately.
7.7 Save for the port-in mobile number, MB shall have the right to assign the Customer’s Number, for the services to another subscriber of MB after the termination of this Agreement or the Mobile Services.
8.1 If the Customer cancels the contract with MB, MB may provide Mobile Services with the Number originally used by the Customer within 90 days of cancellation upon the Customer’s request (but at MB’S discretion) and the settlement of all existing balance and new charges and deposits, provided that the original Number has not been reassign to a new Customer. The Customer must prepay monthly Mobile Services charge and reconnection charges set forth by MB.
9. Limitation of Liability and Indemnity
9.1 MB would not guarantee but at MB’S discretion or warrant that any Mobile Service can be provided or without interruption on a fault-free basis, including successful transmission of mobile data, SMS or mobile phone airtime. MB would not guarantee or warrant and not be responsible for the accuracy or completeness or punctuality of Mobile Services the Customer would receive.
9.2 MB is not responsible for any acts or omissions or loss arising from the Customer’s use of the Mobile Services.
9.3 The Company will not guarantee the acts, negligence or omissions of such third party suppliers in connection with the use of certain information or content services provided by third party suppliers. Accuracy, completeness and / or coherence of such information and shall not be liable for any loss to any person as a result of such information. When using these services, the Customer or User represents and agrees to this Statement of Conformity unconditionally. If there is any dispute or complaint about the service provided by the third party service provider, please contact the service provider directly.
9.4 To the extent permitted by law, all express or implied warranties, representations or statements relating to the subject matter of this Agreement which are not specified in this Agreement are hereby excluded by MB. MB excludes all liabilities or responsibilities for any cost, claim, damage or loss to the Customer or to any third party whether direct or indirect of any kind including revenue, loss or profits or any resulting loss in contract, tort, under any Applicable Laws or otherwise (including negligence) arising out of or in any way related to this Agreement (including any loss to the Customer arising from a suspension or termination of any Mobile Service).
9.5 The aggregate liability of MB to the Customer under or in connection with this Agreement which is not, or cannot be, excluded by clause 9.3, whether based on contract, tort (including negligence), statute, breach of warranty or any other legal or equitable ground is limited to:
(a) the sum of the Charges paid by the Customer in the 12-month period prior to the accrual of such liability;
(b) the sum of the Charges paid by the Customer for the period that this Agreement has been in force prior to the accrual of such liability, if the period is less than 12 months; or
(c) HK$100,000, whichever is the lowest.
9.6 The Customer acknowledges and agrees that:
(a) in supplying the Mobile Equipment to the Customer, MB is merely acting as the manufacturer’s distributor of the Mobile Equipment; and
(b) the Customer cannot make any claim against MB or hold MB liable for any product liability relating to Mobile Equipment either in contract, tort, under any statute or otherwise (including negligence).
9.7 MB will not be liable to the Customer or any other person for any loss or damage resulting from a delay or failure to perform it’s obligation under this Agreement either in whole or in part where such delay or failure is due to causes beyond MB’S reasonable control (including, but not limited to shortage of components, war, the threat of imminent war, riots or other acts of civil disobedience, insurrection, acts of God, restraints imposed by governments or any other supranational legal authority, any other industrial or trade disputes, fires, explosions, storms, floods, lightening, earthquakes and other natural calamities), or is not occasioned by its fault or negligence, including acts or omissions of third parties (including telecommunications network operators, information service content providers and equipment suppliers).
9.8 The Customer indemnifies MB and its Representatives from and against all claims, actions, proceedings or demands in respect of loss or damage of any kind (whether to person or property) incurred by MB or its Representatives arising out of or in connection with a breach of this Agreement by the Customer or relating to the use or attempted use by any person (including the Customer) of the Mobile Services or Mobile Equipment connected to the Mobile Services. For the avoidance of doubt, acts or omissions of a third party (including the Customer’s Representatives) which would amount to a breach of the terms and conditions of this Agreement if they had been undertaken by the Customer shall be deemed breaches of this Agreement by the Customer.
9.9 Save as provided in this Agreement, nothing in this Agreement shall in any way excludes or restricts any party’s liability for death or personal injury resulting from the negligence of that party.
10. Use of Personal Data
10.1 MB’S Personal Data (Privacy) Policy accessible online (www.multi-byte.com) shall form part of this Agreement.
11. Fair Use Policy
11.1 MB’S Fair Use Policy accessible online (www.multi-byte.com) shall form part of this Agreement.
12.1 12.1 MB has the right to notify the Customer in written form or electronic format with thirty days in advance to modify any terms and conditions. To avoid any doubt, MB can notify the Customer through any method or message in either form like mails, attachment of bill statement, voice mail, email, leaflet, designated sales outlet, message through Mobile Equipment’s monitor, commercial on newspaper so as to give the Customer any kind of notification and communications.
12.2 MB can transfer this Agreement or any rights to third party with the consent of the Customer. Without the express consent from MB, the Customer cannot assign any right or responsibility (including the Number given by MB) under any contract between the Customer and MB to others.
12.3 This Agreement shall be construed and governed by the laws of Hong Kong. For any dispute, the parties herein must submit to the exclusive jurisdiction of the Courts of Hong Kong.
12.4 Any failure, delay, relaxation or indulgence by a party in exercising any rights, authority and remedial measures under this Agreement, cannot be considered as a waiver of that rights unless expressed in writing to be a waiver. The rights, authority and remedial measures under this Agreement are cumulative and not exclusive of any other rights, authority and remedial measures available to the party at law or in equity.
12.5 If all or partial of this Agreement is determined as illegal or invalid, those clauses should be removed from this Agreement but the remaining clauses in this Agreement will remain valid.
12.6 This Agreement supersedes all prior agreements, arrangements and undertakings between MB and the Customer and constitutes the entire agreement between MB and the Customer relating to the subject matters herein contained.