Effective date: December 03, 2018
These Service Terms and Conditions (“Agreement”) constitute a contract between Trusted Systems Limited (TSL), with office at Flat 3107, Enterprise Square Two, Kowloon Bay, Hong Kong, and you. TSL wishes to provide and you wish to have the right to access pursuant to the terms of this Agreement, a subscription service. This Agreement includes and incorporates Order Forms (submitted in printed or electronic form or web page form) with which you purchased the Services. By accessing or using the Services, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services.
Acceptable Use Policy
means policy statements and/or set of rules applied by TSL that describe the ways in which the service or system may be used and as to what behaviour is acceptable from Users
means this terms of services and terms specified in the Order Form
means the charges payable by the Customer pursuant to the terms of the Agreement, including, but not limited to, all installation charges, monthly service fees, deposits and other charges for which the Customer is liable;
means the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. TSL’s Confidential Information includes Intellectual Property owned by TSL (or its licensors), including the Software. The Customer’s Confidential Information includes the Data.
means the customer that has signed up for the Services and agreed to the terms of this Agreement
means the software owned by TSL that is used to provide the SaaS Service.
means the fee payable by the Customer pursuant to the terms of the Agreement, including, but not limited to, all installation fees, monthly service fees, deposits and other fees for which the Customer is liable;
means an event that is beyond the reasonable control of a party, excluding: an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or a lack of funds for any reason.
Intellectual Property Rights
means includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
means includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way. Payment Terms the payment terms set out in the agreement (if any).
means the invoice or other forms from TSL for the initial order for the Service, and any subsequent invoice or other forms from TSL (submitted in written form or online), specifying, among other things, the maximum number of Users, initial Term, purchase of any Hardware Tokens, Fees, Telephony Credits (if any), and such other charges and terms as agreed between the parties.
means those personnel of the Customer who are authorised to access and use the Services on the Customer’s behalf
means has the meaning given in the Privacy Act of HK SAR
means the service having the core functionality described in the Order Form.
means the SaaS Service and any Related Service.
means TrustSafe Solutions - Software, Mobile applications, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
2) GRANTED SERVICES
2.1. Subject to and conditioned on customer’s payment of fees and full compliance with all other terms and conditions of this agreement, TSL grants Customer and Users a non-exclusive, non-sublicensable, non-transferable license to access and use the Services.
2.2. TSL will make the services listed in the Order Form (the “Services”) available to the Customer pursuant to this Agreement and the Customer’s order. TSL shall use reasonable efforts to provide the Services: in accordance with the Agreement; exercising reasonable care, skill and diligence; and using suitably skilled, experienced and qualified personnel. During contract period, TSL shall provide the Customer with telephone or electronic support according to the support operation hour specified in the Order Form in order to help the Customer locate and correct problems with the Service and any related software.
2.3. Services Level. TSL shall provide the Service to the Customer with a System Availability specified on the Order form. "System Availability" will not include any minutes of downtime resulting from scheduled maintenance, events of force majeure, malicious attacks on the system, issues associated with the Customer's computing devices, local area networks or internet service provider connections, or TSL's inability to deliver services because of the Customer's acts or omissions.
3) CUSTOMERS OBLIGATIONS
3.1) The Customer may not, and may not cause or permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking or availability testing of the Services; (c) perform or disclose any performance or vulnerability testing of the Services without TSL’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Services; or (d) use the Services to perform cyber currency or crypto currency mining ((a) through (d) collectively, the “Acceptable Use Policy”). In addition to other rights that TSL has in this Agreement and The Customer’s order, TSL has the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the policy.
3.2) The Customer may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish download or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to TSL; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement.
4.1) Personal Data.
Both the Customer and TSL shall comply with the Personal Data Privacy Ordinance of HK SAR, as amended from time to time, and any applicable data protection legislation, regulations, codes of practices, or guidelines which may subsequently be introduced.
The Customer acknowledges and agrees that personal data may be processed as a result of Services being provided. The Customer authorises the processing of personal data and agrees to notify Users about the processing for the purposes of this Agreement and/or in accordance with the Customer's instructions from time to time.
TSL may authorise a third party to process the personal data for the purposes of this Agreement.
4.2) Analytical Data. The Customer acknowledges and agrees that TSL may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service, but only if such information does not identify the data as the Customer 's or otherwise include the Customer's name.
4.3) Backups of Data. While TSL will take standard industry measures to back up all Data stored using the Services, the Customer agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.
4.4) International storage of Data. The Customer agrees that TSL may store Data (including any Personal Information) in secure servers offshore and may access that Data (including any Personal Information) offshore and within Hong Kong from time to time.
5) PAYMENT OF FEES
5.1) General. In consideration for the provision of the Services, the Customer will pay to TSL the Charges notified by TSL to the Customer from time to time. The Customer will be solely responsible to pay any taxes and other charges arising in relation to its use of the Services.
5.2) Invoicing. TSL will issue invoices for the Charges to the Customer by post, electronic mail and/or facsimile transmission. All Charges are due and payable on presentation of the invoice therefor. If any Charges stated in any invoice are not queried within [fifteen (15) days] of the date of the invoice then such Charges shall be deemed accepted by Customer, if applicable.
5.3) Late Payments. TSL may charge a late payment charge calculated at the rate of [2.0%] per month pro rata on daily basis on any Charges not paid within [30 days after the date of the invoice therefor.
5.4) Non-Payment. In the event of non-payment by Customer of sums over-due by the due date, TSL has the right to terminate the applicable services or this Agreement as TSL may determine.
5.5) Additional Fees (If Applicable). TSL may, with the prior written consent of Customer, charge Customer additional Fees (“Additional Fees”) on a time and materials basis at TSL’ then-current rates for any of the following: (a) re-establishment or other assistance requested by Customer outside the scope of specified in the order form; and (b) re- establishment of the Services following Service Suspension pursuant to clause 5.4.
5.6) Price Increases. Notwithstanding anything to the contrary set forth herein, TSL shall not increase the prices for services during the contract period specified in the Order Form, but may thereafter increase prices at any time. TSL shall give at least [thirty 30 days ] prior notice to the customer.
5.7) Renewal. After the expiry of contract period specified in the Order Form, the Customer agrees to continue to subscribe the Service and to pay the charges based on the current listed price by TSL. Except a new contract, with specified contract period defined, has been officially signed, TSL will charge auto renewal by the current listed price on monthly basis.
5.8) Dispute. In case of disputes over any usage or other Charges, TSL’ decision based on its Services usage records and those of any third party who may assist TSL to provide the Services shall be final and binding on Customer or Customer.
6) INTELLECTUAL PROPERTY
6.1) Ownership: All Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of TSL. All Intellectual Property Rights in, the Data remains the property of the Customer. The Customer grants TSL worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.
6.2) Know-how: To the extent not owned by TSL, the Customer grants TSL royalty free, transferable, irrevocable and perpetual licence to use for TSL’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by TSL in the provision of the Services.
6.3) Feedback: If the Customer provides TSL with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback): all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and TSL may use or disclose the feedback for any purpose.
6.4) No Infringement: The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party
7.1) Security: Each party must, unless it has the prior written consent of the other party: keep confidential at all times the Confidential Information of the other party; effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of confidentiality clauses in the agreement.
7.2) Permitted disclosure: The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information: for the purpose of performing the Agreement or exercising a party’s rights under the Agreement; required by law (including under the rules of any stock exchange); which is publicly available through no fault of the recipient of the Confidential Information or its personnel; which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or by TSL if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that TSL enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
8) WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
8.1) Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. TSL warrants that during the Services Period, TSL will perform the Services using commercially reasonable care and skill in all material respects as described in the Order Form. If the Services provided to the Customer were not performed as warranted, the Customer must promptly provide TSL with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying us of the deficiency in the Services).
8.2) TSL DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT TSL WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. TSL IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM THE CUSTOMER’S CONTENT OR THIRD PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES.
8.3) FOR ANY BREACH OF THE SERVICES WARRANTY, THE CUSTOMER’S EXCLUSIVE REMEDY AND TSL’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF TSL CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, THE CUSTOMER MAY END THE DEFICIENT SERVICES AND TSL WILL REFUND TO THE CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT THE CUSTOMER PRE-PAID TO TSL FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
8.4) TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
9) LIMITATION OF LIABILITY
9.1) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE GOODWILL OR REPUTATION.
9.2) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TSL AND OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER YOUR ORDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10.1) The Customer agrees to indemnify and hold harmless TSL for all actions, claims, costs, losses, damages and expenses arising out of The Customer's use of the Services.
10.2) The Customer agrees to indemnify and hold harmless TSL for all claims, proceedings and costs (including legal costs) brought by any third party in relation to the CUSTOMER’s use of the Services.
11) TERM AND TERMINATION
11.1) TSL may terminate this Agreement at any time by giving not less than one (1) month’s prior written notice to the Customer.
11.2) TSL may suspend the Customer or the Customer Users’ access to, or use of, the Services if we believe that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) the Customer or the Customer’s Users are accessing or using the Services to commit an illegal act; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, TSL will provide the Customer with advance notice of any such suspension. TSL will use reasonable efforts to re-establish the Services promptly after TSL determine that the issue causing the suspension has been resolved. During any suspension period, TSL will make the Customer Content (as it existed on the suspension date) available to the Customer. Any suspension under this Section shall not excuse the Customer from the Customer’s obligation to make payments under this Agreement.
11.3) Without prejudice to any other rights or remedies (whether under the Agreement or at law), either party may terminate the Agreement immediately by serving written notice on the other if:
The other party commits a breach of any material obligation under the 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 Customer to pay any Charges within 30 days after they are due will constitute a material breach; or
The other party becomes insolvent. 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.
11.4) Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
11.5) At the end of the Services Period, TSL will make the Customer’s Content (as it existed at the end of the Services Period) available for retrieval by the Customer during a one-month retrieval period. At the end of such retrieval period, and except as may be required by law, we will delete or otherwise render unrecoverable any of the Customer’s Content that remains in the Services.
12) FORCE MAJEURE
Neither the Customer nor TSL shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both the Customer and TSL will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of the Customer or TSL may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or the Customer’s obligation to pay for the Services.
13.1) Any notice, invoice or other document which may be given by either party under the 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.
13.2) Any such communication will be deemed to have been received by the other party on the day of delivery (if left), three (3) days after the date of posting (if sent by prepaid post), one (1) 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).
Failure or delay by TSL to enforce any of its rights under the Agreement or the giving of additional time for performance or other indulgence is not a waiver of such right unless TSL acknowledges the waiver in writing, nor will any single or partial exercise of any right or remedy preclude any further exercise of the same or the exercise of any other right. No waiver of any particular breach of the provisions of the Agreement will operate as a waiver of any repetition of such breach.
If any provision of the Agreement which is not of a fundamental nature is found to be unenforceable or illegal, it shall be severed from the Agreement and will not affect the enforceability of the remainder of the Agreement. In this event the parties will use reasonable endeavours to agree any lawful and reasonable changes to the Agreement which may be necessary to effect as closely as possible the commercial intent of the Agreement.
TSL may update, amend, modify or supplement the terms and conditions of this Agreement from time to time without notice.
17) ENTIRE AGREEMENT
The 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.
18) GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of the Hong Kong Special Administrative Region and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in the Hong Kong Special Administrative Region in any dispute arising out of or relating to this Agreement.