yp sms Service General Terms and Conditions
 
Important Notice:

These terms and conditions are important. Please read them carefully as they deal with issues such as your obligations to us and our obligations to you.

Your subscription, registration for access to and/or use of the yp sms Service shall be governed by these terms and conditions and which shall constitute your agreement to be bound by these terms and conditions.

 
1. Definitions and Interpretation
1.1 1.1 Unless the context requires otherwise, the following terms shall have the following meanings:
“Advertising Contract” means the advertising contract stipulated by PDL for Customer to enter into catalogue and/or electronic advertising services (including yp sms Service) agreement with PDL;
“Agreement” means these General Terms and Conditions and the Customer’s Order Form for subscribing to the yp sms Service;
“Charges” means all relevant charges and fees, including early termination charges (if any) payable by Customer under this Agreement;
“Commencement Date” means the commencement date specified in the Order Form;
“Confidential Information” means all information, oral or written, which is expressly stated to be confidential or which is by its nature implicitly confidential and which is provided by one Party to the other Party pursuant to this Agreement. The provisions of this Agreement are the confidential information of the Parties;
“Customer” means the subscriber specified in the Order Form who agrees to subscribe to the yp sms Service;
“Customer Account” means the user account created on the http://ypsms.yp.com.hk website by the Customer or PDL (as the case may be) for the Customer to access and use the yp sms Service;
“Network” means all equipment, facilities, systems, infrastructure and network managed and operated by PDL, its affiliates and agents for providing the SMS Service;
“Order Form” means the duly completed electronic order form submitted by Customer to PDL via the Customer Account or the duly completed Advertising Contract in document form submitted by Customer to PDL (as the case may be) for the subscription to and/or use of the yp sms Service;
“Party” means either PDL or Customer and the term “Parties” means both of them collectively;
“PDL” means PCCW Directories Limited.
“Short Message” or SMS” means a short message delivered through a mobile telecommunications network that originates from or is received through a mobile phone;
“yp sms Service” means the service of procuring (i) the sending of SMS to Hong Kong and/or Macau (if available and offered by PDL) mobile telephone numbers of Customer’s recipients as specified in the Order Form; and (ii) if required by Customer, the delivery and receipt of replies to such SMS by these recipients to Customer; as provided by PDL to Customer pursuant to this Agreement;
“Software” means software or internet interface applet (if any) that may be provided to Customer to access the yp sms Service;
“Users” means the employees of Customer and/or persons authorized by Customer to use the yp sms Service.
1.2 Words importing the singular include the plural and vice versa; words importing gender include both genders and the neuter.
1.3 References to the term “person” or “entity” shall include any individual, partnership, corporation or other legal entity (including without limitation, any unincorporated joint venture).
1.4 References to “day” shall exclude all Saturdays, Sundays and public holidays in Hong Kong.
1.5 Headings are for convenience only and shall not affect the interpretation of this Agreement.
1.6 References to statutory provisions shall be construed as references to those provisions as respectively amended, re-enacted or supplemented from time to time and shall include any or all subordinate legislation made under such provisions.
 
2. Provision of yp sms Service
2.1 PDL shall provide the yp sms Service to Customer and its Users in accordance with these terms and conditions.
2.2 PDL shall be entitled to temporarily suspend the provision and use of the yp sms Service without prior notification when upgrade, enhancement, alteration, modification, repair or maintenance of the Network and/or Software is required.
 
3. Software Licence
3.1 PDL hereby grants to Customer a limited non-exclusive and non-transferable licence for Customer to store, run and use the Software on its computer in accordance with the terms and conditions of this Agreement and the software licence which accompanies the Software but not further or otherwise. Except to the extent permitted by law, Customer shall not itself or permit another third party to alter, modify, adapt or translate the Software nor decompile, disassemble or reverse engineer the same nor attempt to do any such thing.
 
4. Customer’s Obligations and Responsibilities
4.1 Customer shall perform and procure its Users to perform the obligations stipulated under this Agreement in a timely manner.
4.2 Customer shall not transmit or disseminate or permit its Users to transmit or disseminate any SMS, content and/or materials which are unsolicited (whether they are for advertising or promotional purpose or otherwise), obscene, immoral, indecent, deceptive, fraudulent, defamatory, discriminatory, privacy-intrusive, intimidating, provocative, unlawful, in breach of confidence, liable to incite racial hatred, seditious, offensive, defamatory, threatening, discriminatory, menacing or an infringement of any intellectual property right.
4.3 Customer shall not send or permit its Users to send any promotional Short Messages to any party unless with the intended recipient’s express prior written consent. PDL shall have the right to stop or withhold the delivery or receipt by Customer or its Users of any promotional Short Messages.
4.4 The yp sms Service is intended to be used solely by the Customer and/or its Users only. Customer shall not, unless with the written consent of PDL, resell, distribute, redistribute or share the use of the yp sms Service in any way whether or not for monetary reward to any party other than the Users.
4.5 Customer:
(a) will be strictly and solely responsible for its and the Users’ use of the yp sms Service and/or the Customer Account;
(b) will ensure that each of the Users comply with these terms and conditions;
(c) shall not sub-license or sub-contract all or any of its rights and obligations under this Agreement;
(d) shall abide by the laws of Hong Kong (including without limitation the Personal Data (Privacy) Ordinance, the Unsolicited Electronic Messages Ordinance and Race Discrimination Ordinance) and any operating rules of PDL, as amended from time to time, when using the yp sms Service to send the SMS;
(e) will provide true, accurate, current and complete information as required to complete the registration for the Customer Account and for use of the yp sms Service;
(f) will maintain and promptly update the Customer Account information and keep it accurate, current and complete;
(g) will not provide any information that is untrue, inaccurate, not current or incomplete. If PDL have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, PDL have the right to suspend or terminate the Customer Account and refuse any and all current or future use of the yp sms Service;
(h) will report any violation of this Agreement to PDL;
(i) will safeguard its username and password for the Customer Account and ensure that they are not disclosed or provided to any unauthorized person and ensure that all Users safeguard the username and password for the Customer Account and ensure that they are not disclosed or provided to any other person; and
(k) will, in relation to any Short Message which it or the Users provide to PDL in connection with the yp sms Service, be deemed to have granted to PDL and/or its Affiliates, an irrevocable license to copy, distribute, publish and transmit such Short Message as is necessary for PDL to perform its obligations under this Agreement.
4.6 Customer acknowledges that it is not PDL’s policy to exercise any editorial control over or to edit or amend any content or SMS before it is delivered via the yp sms Service. Notwithstanding the foregoing, PDL shall have the right to edit or delete any Customer’s SMS at any time and in such manner as PDL thinks fit.
 
5. Suspension and Termination
5.1 PDL may:
(a) deactivate the yp sms Service, with or without notice to Customer, to carry out system maintenance, upgrading, testing and/or repairs;
(b) limit or suspend Customer’s access to and PDL’s provision of, the yp sms Service with or without notice to Customer where PDL is of the opinion that such action is appropriate as a result of Customer’s use of the yp sms Service;
(c) take any steps or omit to take any steps, with or without notice to Customer, for any reason PDL deems relevant to the management or the operation of the yp sms Service and PDL’s business, that may expand, reduce, modify, suspend, limit, make inaccessible or adversely affect the yp sms Service, Network, Software and/or any Customer’s SMS;
(d) remove, disable or suspend delivery of any SMS (i) in the event of any breach of this Agreement by Customer; or (ii) which PDL considers in its sole opinion, breaches any applicable law, regulation or regulatory directive or to be otherwise unacceptable;
(e) suspend the yp sms Service if it is to PDL’s financial or commercial interest to suspend such service to a particular Customer or User; and
(f) upon discovery of suspected or inchoate, fraudulent, deceptive, unlawful or improper use of the yp sms Service by any party, suspend Customer’s access to and/or PDL’s provision of, the yp sms Service to prevent such conduct from taking place.
5.2 This Agreement may be terminated by PDL at any time forthwith upon occurrence of any of the following events:
(a) Customer shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or Customer shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business or analogous event in the jurisdiction in which Customer is incorporated;
(b) Customer has breached any term of this Agreement; or
(c) PDL ceases to offer or provide the yp sms Service or it is required by any regulatory authority to cease the provision of the yp sms Service.
5.3 Any termination shall be without prejudice to either Party’s rights of action against the other for any antecedent breach or liability incurred prior to the date of termination.
 
6. Payment
6.1 PDL’s provision of yp sms Service to Customer is conditional upon the timely payment of all applicable Charges in accordance with the payment terms under this Clause 6.
6.2 Prepayment: In respect of all Order Forms that are submitted by Customer by way of a duly completed Advertising Contract to PDL, Customer shall prepay an amount specified by PDL (“Prepayment”) before Customer may use the yp sms Service. All Charges payable for the use of the yp sms Service will be deducted from the Prepayment. Such Prepayment must be used by Customer on or before the expiry of 12 months after the date of the Order Form, and any unused Prepayment will be automatically forfeited after the expiry date. If the Customer’s Prepayment is not sufficient to settle all Charges for the use of the yp sms Service, PDL shall be entitled to withhold, suspend, discontinue and/or terminate the provision of the yp sms Service until Customer has topped up the Prepayment with sufficient value to settle all Charges. Any such Prepayment is non-refundable, non-transferable, non-extendable and non-redeemable for cash.
6.3 Online payment: In respect of all Order Forms that are submitted by Customer electronically to PDL via the Customer Account, Customer shall pay the applicable Charges under such Order Form for the use of the yp sms Service through the online electronic payment gateway at the time of the Customer’s submission of the electronic Order Form to PDL,
6.4 If Customer has agreed to a minimum committed amount for a particular period under its subscription to the yp sms Service as specified under the Order Form and in the event that the total Charges incurred by Customer accrued during such period do not exceed the minimum committed amount, PDL shall be entitled to deduct from the pre-paid value purchased by Customer, all accrued Charges and the difference between the actual accrued Charges and the minimum committed amount specified under such Order Form.
6.5 Customer shall pay a deposit and/or setup fee, the amount of which is specified in the Order Form, and such additional deposits if so requested by PDL, to secure the due performance and observance of Customer’s obligations hereunder. PDL shall be entitled to, in addition to its other rights and remedies hereunder, deduct from the deposit any outstanding sum that is due by Customer to PDL. The deposit and setup fee is non-refundable and non-transferable. Customer acknowledges that payment of the deposit by Customer is not risk free and that such deposits may not be returned to Customer in the event of PDL’s liquidation. In such event, return of the deposit shall be governed by the law of insolvency applicable in Hong Kong.
6.6 At the end of each billing cycle, PDL shall send an invoice for the preceding billing cycle to Customer. If Customer does not dispute such invoice within 10 days upon receipt thereof, the invoice and report shall be deemed accepted and shall become conclusive evidence of amounts due by Customer to PDL. In the event of dispute by Customer, Customer shall set out in writing its grounds for disputing the invoice and provide evidence in support of such grounds of dispute to PDL. The invoice will be off set from the amount prepaid by Customer for the SMS Service within 30 days from the date of invoice or by such due date as specified on such invoice. There shall be no other set-off, deduction or withholding by Customer. PDL reserves the right to at any time without notice to Customer combine or consolidate all or any of Customer’s accounts so as to set-off, transfer or apply any sum or sums standing to the credit of PDL in or towards satisfaction of any of the outstanding sums of Customer owed to PDL whether or not such accounts have been terminated or suspended.
6.7 No credit or refund is available in respect of any time when the yp sms Service and/or the Network is ‘down’ or suspended or otherwise not available for access.
6.8 PDL reserves the right to adjust the applicable fees and charges for using the yp sms Service and change the payment methods by giving 7 days’ prior notice to the Customer.
6.9 In the event of any billing and/or system error resulting in the Customer being undercharged for its use of the yp sms Service, PDL shall be entitled to collect the undercharged Charges from the Customer provided that PDL notifies and issue an invoice to Customer within 1 month of its becoming aware the Customer has been undercharged at any time during the term of the Agreement and Customer shall pay all undercharged Charges to PCCW within 30 days of Customer’s receipt of the relevant invoice from PDL.
6.10 Customer shall pay all applicable goods and services tax, value added tax, sales tax, business tax or any other similar taxes, duties or charges on all Charges and/or any fees under this Agreement in accordance with the applicable laws and/or regulations of Hong Kong and/or any other jurisdictions.
 
7. Indemnity
  Customer shall fully and effectively indemnify PDL from and against any action, liability, cost, claim, loss, damage, proceeding, and/or expense (including reasonable legal expense) suffered or incurred by PDL arising from or which is related to:
(a) Customer’s use and/or any Users’ use of the yp sms Service and/or Software;
(b) any infringement of the intellectual property rights and/or other rights of a third party relating to the content of any Short Message uploaded to the yp sms Service, supplied and/or otherwise provided by the Customer to PDL pursuant to this Agreement; and
(c) any breach or non-observance by Customer and/or Users of any term of this Agreement or other terms and conditions (if any) applicable to the Software downloaded by Customer and/or Users.
 
8. Limitation of Liability
8.1 Subject to Clause 8.5, PDL’s aggregate liability to Customer shall in any event not exceed the total Charges paid by Customer to PDL in respect of the Order Form giving rise to such liability.
8.2 PDL expressly disclaims all responsibilities and liabilities for or arising from:
(a) the use of the yp sms Service, Customer Account and Software by the Customer and Users;
(b) any damage to or loss of data suffered by the Customer and/or Users arising from its/his/her use of the yp sms Service, Customer Account and/or Software;
(c) any claim based in contract, tort, or otherwise for any loss of revenue (whether direct or indirect), loss of profits or any indirect or consequential loss whether of an economic nature or not;
(d) any claim relating to the yp sms Service, Customer Account and/or Software supplied, provided, sold or made available by PDL (or any failure or delay to so supply, provide, sell or make available);
(e) any failure, interruption, delay, error, disruption or suspension on the part of PDL (including without limitation in relation to the yp sms Service, Network, Software, PDL’s customer service and after sales service);
(f) any delay or failure in the delivery of any Customer’s SMS; and/or receipt of such SMS by Customer’s intended recipients;
(g) any delay in the receipt of or failure to receive by Customer, replies from recipients of its SMS;
(i) any error in the SMS sent to Customer’s recipients as specified in the Order Form; and
(j) any erroneous delivery of Customer’s SMS to persons other than Customer’s recipients as specified in the Order Form.
8.3 In the event that the provision of the yp sms Service is undertaken by PDL’s contractors, sub-contractors, service providers or agents (collectively referred to as “Independent Service Providers”), PDL disclaims for itself and on behalf of the Independent Service Providers all responsibilities or liabilities arising from the acts, default, neglect, omissions and mistakes committed by the Independent Service Providers. In consideration of the services (including without limitation information and content services) provided by the Independent Service Providers (whether or not on behalf of PDL) to Customer, it is expressly acknowledged and agreed by Customer that PDL has the requisite authority to make the disclaimer on behalf of the Independent Service Providers and that this Clause 8.3 shall be extended to protect the Independent Service Providers and shall be relied upon by the Independent Service Providers as if they were parties to this Agreement with Customer.
8.4 Without limitation to any other provision in this Agreement, PDL expressly disclaims and excludes any liability whatsoever arising directly or indirectly from PDL exercising any of its rights under this Agreement.
8.5 Nothing in this Agreement shall operate to exclude or restrict either Party’s liability:
(a) for death or personal injury resulting from negligence of a Party;
(b) for fraud; or
(c) if such limitation or exclusion is prohibited by law.
 
9. Warranty/Acknowledgement
9.1 Customer warrants that it has procured written consent from each intended recipient of its SMS for:
(a) the reception of such SMS; and
(b) the disclosure of that recipient’s personal data to PDL and the Independent Service Providers for the purpose of delivering and receiving such SMS to such recipient.

The format of the written consent shall be in a form satisfactory to PDL and Customer. PDL declares that it provides the yp sms Service to Customer on the assumption that the consent remains valid and has not been withdrawn.
9.2 Customer warrants that the person submitting the Order Form is authorized and has the capacity to act on its behalf.
9.3 Customer acknowledges that whilst PDL shall use reasonable endeavours to provide the yp sms Service, the ultimate delivery of the SMS to Customer’s recipients is dependent upon the mobile telecommunications operators. PDL therefore makes no warranty (express or implied) as to the quality, timeliness, availability, title, fitness for a particular purpose, merchantability and durability of the yp sms Service, Network and/or Software.
9.4 All product liability relating to the hardware, handsets, terminals and accessories (collectively referred to as the “Equipment”) sold or supplied (if any) to Customer by PDL shall rest with the respective manufacturers solely in any event. PDL makes no warranty as to the safety and suitability of the Equipment. Customer and its Users shall read and familiarize themselves with the user handbook/user manual released by the respective manufacturers prior to using or operating the Equipment and shall not contravene any instruction, guidance or restriction therein specified. Customer expressly acknowledges and agrees that PDL’s role is merely a reseller/distributor/integrator of the Equipment and that Customer and the Users shall not make any claim against PDL or hold PDL liable for any product liability either in contract law or tort.
 
10. Intellectual Property Rights
10.1 Customer acknowledges and agrees that the intellectual property rights in the yp sms Service, Software, Network and the “yellow pages” and “yp” trade names and marks belong to PDL, its third party service providers and/or licensors. Nothing that Customer does will transfer any intellectual property rights therein to Customer.
 
11. Confidentiality
11.1 Customer agrees to keep the terms of this Agreement and PDL’s business affairs and those of its affiliates and Independent Service Providers confidential and not to disclose such information to any third party or make any announcement in relation to them without PDL’s prior written consent.
11.2 PDL may at any time disclose the terms of this Agreement and the cooperation herein if such disclosure is required by trade practice, applicable law, regulatory bodies or stock exchange rules.
 
12. Non-exclusivity
  No exclusivity arrangement shall be created between PDL and Customer hereunder. PDL shall have the right to offer the same or similar services to any party.
 
13. Data Privacy & Provision of Information
13.1 If PDL requests personal data from Customer that constitutes Personal Data (meaning Personal Data as defined in the Personal Data (Privacy) Ordinance, account information including data set out in the Order Form and any other personal information obtained from Customer or from another source), Customer may decline to provide the Personal Data but in that event PDL may decline to provide the yp sms Service to Customer or the Users.
13.2 Customer agrees that PDL may use the Personal Data for any and all of the following purposes: (a) the provision of the yp sms Service to Customer and the Users (including the transfer of such Personal Data to other telecommunications network providers or third parties as necessary for the provision of the yp sms Service and/or the transfer of such Personal Data to Affiliates (meaning any other entity which directly or indirectly controls PDL, is controlled by PDL, or is under common control with PDL) as necessary for the provision of the yp sms Service by PDL); (b) matching (as defined in the Personal Data (Privacy) Ordinance) the Personal Data with other data collected for other purposes and from other sources including third parties in relation to the provision of the yp sms Service, (c) marketing of goods and/or services by PDL, its agents and/or Affiliates; in relation to the yp sms Service and/or the goods and/or services of such agents, Affiliates and/or subsidiaries; (d) business planning and improving of goods and/or services in relation to the provision of the yp sms Service and/or other goods and services of PDL and/or its Affiliates; (e) processing of any benefits arising out of or in connection with the yp sms Service and/or other goods and services of PDL and/or its Affiliates; (f) analysing, verifying and/or checking Customer’s credit, payment and/or status in relation to the provision of the yp sms Service and/or other goods and services of PDL and/or its Affiliates; (g) processing of any payment instructions, direct debit facilities and/or credit facilities in relation to the provision of the yp sms Service and/or other goods and services of PDL and/or its Affiliates or requested by Customer; (h) enabling the daily operation of Customer’s accounts with PDL and/or its Affiliates and/or the collection of amounts outstanding from Customer (which may include disclosing Customer’s Personal Data to debt collection agencies) in relation to the yp sms Service, content and/or other goods and services provided by PDL and/or its Affiliates; (i) enabling PDL to comply with its obligations to interconnect or other industry practices; (j) keeping Customer and the Users informed of the yp sms Service and/or other goods and services of PDL and/or its Affiliates; (k) prevention or detection of crime; (l) disclosure as required or permitted by law; (m) the operation of all other businesses conducted by PDL and/or its Affiliates from time to time and all related purposes connected with those businesses and including the purposes listed in sub-clauses (a) to (l) above as if the SMS Service included a reference to those other businesses; (n) any other purposes as may be agreed between the Parties. The Customer agrees that the Personal Data may be disclosed and transferred in Hong Kong or to/in places outside Hong Kong to PDL’s Affiliates, its Independent Service Providers, agents, contractors, other telecommunications operators or any third parties (including collection agencies, credit reference agencies, security agencies, credit providers or other financial institutions and any of PDL’s actual or proposed assignees or transferees of PDL’s rights with respect to Customer) for such person to use, disclose, hold, process, retain or transfer such Personal Data for the purposes listed in this Clause 13.2 or any other purposes incidental thereto.
13.3 Customer shall, as soon as practicable, notify PDL of any changes of address or any other particulars provided to PDL which may affect the provision of the yp sms Service and the Users. On PDL’s request, Customer shall provide PDL with information relating to Customer and the use of the yp sms Service by the Users as reasonably required by PDL:
(a) to assist PDL in complying with PDL’s obligations under any applicable law;
(b) to report to any government agency regarding compliance with those obligations; and
(c) to assess whether or not Customer has complied, is complying and will be able to continue to comply with all of its obligations under this Agreement.
 
14. Force Majeure
14.1 If either Party is affected by Force Majeure, it shall forthwith notify the other Party of the nature and extent thereof. Force Majeure shall mean any circumstances beyond the reasonable control of the affected Party, including without limitation, war, the threat of imminent war, riots or other acts of civil disobedience, insurrection, acts of God, restraints imposed by governments or any other industrial or trade disputes, fires, explosions, storms, floods, lightning, inclement weather, earthquakes and other natural disasters.
14.2 Neither Party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, non-performance or breach of any of its obligations hereunder to the extent that such delay, non-performance or breach is due to Force Majeure of which it has notified the other Party pursuant to this Clause 14.
14.3 If the Force Majeure in question prevails for a continuous period in excess of three (3) months, the Parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable in the circumstances. In the event that no alternative arrangements can be reached in accordance with this Clause 14.3, either Party may subject to Clause 5.3, terminate this Agreement without liability to the other Party.
 
15. Governing Law
  This Agreement shall be governed and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) and the Parties agree to submit themselves to the exclusive jurisdiction of the Hong Kong courts.
 
16. General
16.1 No partnership, joint venture or agency is intended to be created between both Parties.
16.2 Customer shall not transfer or assign all or any of its rights and obligations under this Agreement to any third party except with the prior written consent of PDL. PDL shall have the absolute discretion to assign or subcontract the whole of any part of its rights and obligations hereunder to any party or parties.
16.3 If any of these terms and conditions shall be construed by a competent court of Hong Kong to be illegal or invalid, it shall not affect the legality, validity and enforceability of the other provisions herein.
16.4 No failure or delay on the part of PDL to exercise any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise by either of the Parties of any, right, power or remedy.
16.5 This Agreement constitute the entire agreement between the Parties in relation to the subject matter herein and the terms and conditions therein supercede all prior agreements and arrangements between the Parties whether oral or in writing concerning the same subject matter.
16.6 Customer agrees that PDL may introduce new fees and/or amend the amount of fees payable, the terms of any subscription plans and offers subscribed by Customer, the provisions of this Agreement or PDL’s operating rules which govern PDL’s provision and Customer’s use of the yp sms Service by (a) posting the details of such amendments on http://ypsms.yp.com.hk; and/or (b) sending Customer a notification of such amendments via post or such other means as determined by PDL, such amendments to take effect 7 days after any such posting on http://ypsms.yp.com.hk is made and/or the sending of such notification.
16.7 The English version of these terms and conditions shall prevail over the Chinese version (if any). In the event of any inconsistency between the Order Form and these Terms and Conditions, the Order Form shall prevail to the extent of such inconsistency.