TERMS AND CONDITIONS
PLEASE READ THE TERMS AND CONDITIONS SET FORTH BELOW, AS THEY APPLY TO YOUR USE OF THE WEBSITE. YOUR USE OF THE WEBSITE SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND AGREEMENT TO BE BOUND BY THEM AND ANY AND ALL OTHER APPLICABLE TERMS REFERENCED HEREIN ABSOLUTELY
1. DEFINITIONS
1.1 Capitalised terms used in these Terms shall have the following meanings:
“Applicant(s)” means the personnel or organisations submitting the Application for the Scheme.
“Application” means the Energy Performance Certificate and Label Application to be submitted by the Applicant in order to apply for any Energy Performance Certificate and Label, whether for the first time or for renewal, under the Scheme. The Application Fee can be found at http://hkbest.hkgbc.org.hk/com/application/application-intro.html, which may be amended by us from time to time at our sole discretion, without notice.
“Assessment Tools” or “Tools” means the two on-line assessment tools available to Applicants in their Application, namely: Free Benchmarking Tool and HKGBC Benchmarking and Energy Saving Tool - Commercial Buildings (Office/Retail) (HK BESTCOM).
“Authorised Assessor(s)” or “Assessor(s)” means BESTCOM Authorised Assessor(s) for Energy Benchmarking accredited by the HKGBC to complete the Verified Assessment and HK BEST as part of the Application in relation to the Scheme.
“HK BEST” refers to HKGBC Benchmarking and Energy Saving Tool.
“HK BESTCOM” refers to HKGBC Benchmarking and Energy Saving Tool - Commercial Buildings (Office/Retail).
“Disabling Code” means any virus, “back door”, “time bomb”, “logic bomb”, “Trojan Horse”, “worm”, “drop dead device” or any other software, computer program or malicious code intended or designed to:
(a) permit access to or use of our computer systems or the computer systems of any third party (including other Users); or
(b) disable, damage, corrupt, erase, interfere, monitor, intercept, copy, or disrupt or impair the normal operation of, our computer systems, the computer systems of any third party (including other Users), the Website, or any associated data or information.
“Fees” means the requisite fee set out at http://hkbest.hkgbc.org.hk/of/intro/intro-fees.html to be paid for each and every Energy Performance Certificate and Label application, renewal and appeal, which amounts may be amended from time to time by the HKGBC.
“Forms” means all the application forms for the Scheme.
“HKGBC”, “we”, “us” or “our” means the Hong Kong Green Building Council Limited, a company incorporated under the laws of Hong Kong with its registered office at 1/F, Jockey Club Environmental Building,77 Tat Chee Avenue, Kowloon Tong, Hong Kong.
“HKGBC Indemnified Parties” has the meaning given in Clause 18.1.
“Intellectual Property Rights” means any trademarks, service marks, logos, trade names, corporate names, Internet domain names, patents, registered designs, copyrights, design rights, database rights, rights in designs, inventions, semiconductor topography rights, know-how, trade secrets or any similar right exercisable in any part of the world, whether registered or not, and including any applications for the registration of any such rights.
“Loss” or “Losses” means losses, liabilities, costs, judgments, awards, damages, fines, penalties, sanctions, settlements, claims, demands, actions, costs, charges, expenses and liabilities of whatsoever nature (including attorney/legal fees for both internal and external counsel, and costs related to investigation, arbitration, litigation or settlement) and includes:
(a) loss of profit;
(b) loss of revenue;
(c) loss of time;
(d) loss of anticipated savings;
(e) loss of opportunity;
(f) loss or corruption of data;
(g) loss of use;
(h) loss of business;
(i) wasted expenditure;
(j) loss of or damage to physical property;
(k) business interruption;
(l) loss of or damage to goodwill; or
(m) cost of procuring substitute products and/or services,
(and each paragraph (a) – (m) shall be considered independently without applying the ejusdem generis rule).
“Personal Data” means any data or information relating to an individual and from which it is practicable for the identity of the individual to be directly or indirectly ascertained, and in a form in which access to or processing of the data is practicable (including, but not limited to, names, ages, addresses, occupations, contacts, other personal details and credit card information).
“Privacy Policy” means our privacy policy found at http://hkbest.hkgbc.org.hk/greenbuilding/privacy_policy.aspx and which may be amended by us from time to time at our sole discretion, without notice.
“Scheme” means the HKGBC Benchmarking and Energy Saving Tool - Commercial Buildings (Office/Retail).
“Secretariat” means the Scheme Secretariat which will be formed out of designated HKGBC staff, who will administer, implement and operate the Scheme
“Service(s)” mean(s) service provided by any of the staff, employees, officers and/or agents of the HKGBC in relation to the Scheme.
“Terms” means these terms and conditions for use of the Website.
“Third Party Materials” means any content, material or information, in any format whatsoever, sourced from the third parties that you can assess on or through the Website.
“Third Party Provider” means any entity or individual that is not HKGBC, which is the source of any Third Party Materials.
“Users” means any other person, other than you, who accesses, views or uses the Website or Service.
“Verified Assessment” means the Application process in which an Authorised Assessor hired by an Applicant will need to collect and independently verify energy performance data of the Applicant’s premises or projects or property, to complete the HK BEST, and to review, verify and complete the Verified Assessment form.
“Website” means the HKGBC Benchmarking and Energy Saving Tool - Commercial Buildings (Office/Retail) website at http://hkbest.hkgbc.org.hk/of/index.html.
“Website Content” means any data, material or information, in any format whatsoever, including (without limitation) any data files, text, computer software, images, graphics, photos, video clips, sound, audio files, directories, files, databases or listings, that is made available on or through the Website, including, the Assessment tools, Forms, and any Third Party Materials.
“you” or “your” means you, the person or entity who is accessing or viewing the Website.
“Your Content” means any Website Content that is provided, uploaded, transmitted, submitted or posted by or sourced from you in relation to any of the information needed for the Application or use of Forms or Assessment Tools.
Whenever the words include, includes, including or in particular (or similar derivate) are used, they are deemed to be followed by the words without limitation.
2. ACCEPTANCE OF THESE TERMS
2.1 By accessing and/or using the Website or the Assessment Tools or the Application form, you agree to be bound by and accept these Terms.
2.2 Your access and/or use of the Website, Assessment Tools and Application form is contingent upon you first agreeing to be bound by these Terms and the Privacy Policy.You must cease using the Website or the Assessment Tools or the Application form immediately if you do not agree to accept all of these Terms.
2.3 You must cease accessing or using the Website or the Service and must not accept these Terms if:
(a)you are not of legal age to form a binding contract with the HKGBC; or
(b)you are a person barred from accessing or using the Website under the laws of Hong Kong or under the applicable laws of the jurisdiction you are ordinarily resident in or from which you are accessing the Website from.
3. CHANGE OF TERMS
3.1 We may amend the Terms from time to time in our sole discretion without notice or liability to you. By continuing the Application process or to use the Website following such amendments to the Terms, you agree to be bound by such amendments.
4. CHANGES TO THE WEBSITE
4.1 We may, in our sole discretion and at any time, without notice to you, add to, amend or remove any Website Content or Your Content, or alter the presentation, substance, or functionality of the Website or the Service.
4.2 The HKGBC reserves the right, but shall have no obligation to, pre-screen, review, flag, filter, modify, refuse or remove any or all Website Content or Your Content from the Website, at its sole discretion.
5. YOUR CONDUCT
5.1 You agree to use the Website and participate under the Scheme only for purposes that are permitted by:
(a) these Terms; and
(b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
5.2 You agree not to use the Website or any Website Content:
(a) in any way that is unlawful and/or breaches any applicable laws, regulations, codes, guidelines or orders;
(b) to contravene or infringe upon any third party’s rights (including Intellectual Property Rights); or
(c) to send, communicate, knowingly receive, upload, download or use any material or engage in any harassing, disruptive, offensive, abusive, threatening, indecent, defamatory, obscene or menacing behaviour, or behaviour that causes annoyance, inconvenience, needless anxiety or are intended to deceive.
5.3 You agree that:
(a) you will not engage in any activity that interferes with or disrupts the Website or the servers and networks through which the Website is provided;
(b) you will not copy, reproduce, download, re-publish, sell, distribute or resell any part of the Website or Website Content;
(c) you will not copy, reproduce, download, compile or otherwise use any part of the Website or Website Content for the purposes of operating a business that competes with the Website, or otherwise commercially exploits the Website, or the Assessment Tools, or Application form or Website Content;
(d) use of the Website, or the Assessment Tools, or the Application form, or any Website Content for any purpose not expressly permitted in the Terms is prohibited;
(e) when using the Website or the Assessment Tools, or the Application form, you, and your employees, sub-contractors, agents or affiliates, shall not install, import or transmit (and shall take reasonable measures to prevent against the installation, importation or transmission of) any Disabling Codes or similar malicious instructions, codes, techniques or devices capable of disrupting, disabling, damaging or shutting down the Website, or the Assessment Tools, or the Application form, or other telecommunications or computer systems or devices;
(f) you shall not take any action or allow any third party to take any action that would enable you, or any third party, to gain unauthorised access to, or to tamper with or use any of our computer systems or networks; and
(g) you are solely responsible for, and the HKGBC has no responsibility to you or to any third party (including any Users) for any breach of your obligations under these Terms, and for the consequences of any such breach.
6. THE APPLICATION PROCESS
6.1 First-time and Renewal Application
6.1.1 First-time Applicants will have to pay an application fee to the HKGBC in accordance with the fee structure set out at http://hkbest.hkgbc.org.hk/of/intro/intro-fees.html to start the Application process. It should be noted that once the temporary account has been approved and changed to paid account upon confirmation of payment, the registration fee cannot be refunded.
6.1.2 The Energy Performance Certificate and Label will remain valid with the same Applicant and building and will be terminated once the ownership of the building changes. Applicants are required to renew their certificate and label if they would like to continue with the use of the certificate and label after the validity period. They have to submit the Application together with the relevant documents again for certificate and label renewal. A renewal fee as set out at http://hkbest.hkgbc.org.hk/of/intro/intro-fees.html will be charged.
6.2 Verification Assessment
6.2.1 The Authorised Assessors shall conduct the services for Verification Assessment at HKGBC’s own discretion.
6.2.2 We are not obliged to ensure that:
(a) all decisions of the Authorised Assessor for the verification of documents and information submitted are appropriate;
(b) all specific energy conservation advice given by the tool to Applicants are accurate;
6.2.3 The HKGBC would only verify the Business Registration Copy on the date of the Applicant's submission. However, the renewal of Business Registration Copy shall be solely responsible by the Applicant.
6.2.4 After the completion and final submission of the Verified Assessment form to us to proceed to the Application, Applicants can only review but not amend information in the form.
6.3 Application Processing
6.3.1 The Secretariat will review the information in the Verified Assessment form at HKGBC’s own discretion.
6.3.2 The Secretariat, if necessary, will conduct random on-site checking to 10% of the application premises. In this case, the Applicant will be notified of the arrangement and should provide the support and necessary arrangement to facilitate the on-site visit.
6.3.3 If necessary, the Secretariat will request supplementary information from the Applicant for evaluation. Evaluation of the Application will only start when information is sufficient on our discretion.
6.3.4 The Application result will be released to the Applicant through email after the end of the application evaluation.
6.3.5 If the Application is successful, the Energy Performance Certificate and Label will be sent to the Applicant afterwards.
6.3.6 The HKGBC holds the final decision over the result of any Application in case of any dispute.
6.3.7 The HKGBC has the right, in its sole discretion, to refuse or terminate an Application, for any reason whatsoever (including but not limited to breach of any of these Terms) and at any time.
7 HANDLING OF APPEALS AND COMPLAINTS
7.1 Handling of Appeals
7.1.1 The payment process for an appeal application fee as set out at http://hkbest.hkgbc.org.hk/of/resources/resources-other.html will be notified to the Applicant.
7.1.2 All the documents and information of the appeal cases will be collected and kept by the HKGBC for future references.
7.1.3 The HKGBC has the right, in its sole discretion, to refuse or terminate an appeal, for any reason whatsoever (including but not limited to breach of any of these Terms) and at any time.
7.1.4 The HKGBC holds the final decision over all handling procedures and result of any appeal in case of any dispute.
7.2 Handling of Complaints
7.2.1 Any person may lodge a complaint in writing, giving reasons and description of the causes for grievance against:
(a) the Scheme operation;
(b) the Authorised Assessor;
(c) the Energy Performance Certificate and Label Holder;
(d) any other matters of relevance to the Scheme
7.2.2 The handling process of any complaint will be decided solely on the discretion of The HKGBC.
7.2.3 The HKGBC is not obliged to give any feedback or reply in whatsoever format to any person who has lodged a complaint.
8 GENERAL OBLIGATIONS OF APPLICANTS
8.1 The Applicant shall at all times:
(a) comply with the obligations and requirements as required;
(b) ensure the documents they provide are true and accurate;
(c) inform the HKGBC for any updated and change of any information (i.e. company name, address,). However, existing certificate and label will become invalid;
(d) allow the Secretariat to publicise the list of successful and certified premises of the Scheme;
(e) use and display the Energy Performance Certificate and Label honestly and truthfully to any person concerned;
(f) endeavour to ensure that the Energy Performance Certificate and Label awarded is not used in a misleading manner;
(g) maintain the energy performance of the premises
8.2 The Applicant shall cooperate with the Secretariat and BESTCOM Authorised Assessors and provide them with full support during on-site assessment(s) as required during the course of the Application and to provide all necessary information.
8.3 In the event that the Applicant fails to meet any of the above obligations, the HKGBC may, at its sole discretion, terminate the registration of the building and request the return of the Energy Performance Certificate and Label.
9 USE OF ENERGY PERFORMANCE CERTIFICATE AND LABEL
9.1 The validity period of the Energy Performance Certificate and Label is 5 years. Applicants are required to submit a renewal application if they would like to continue with the use of the certificate and label after the validity period.
9.2 The Applicant shall not use the Energy Performance Certificate and Label in any manner whatsoever that may cause the Secretariat and/or any parties to incur any liability whatsoever. Furthermore, the Applicant shall not make any statement regarding its Energy Performance Certificate and Label that the Secretariat may reasonably consider to be misleading.
9.3 The ownership and copyright of the Energy Performance Certificate and Label remains with HKGBC. The Energy Performance Certificate and Label should be returned to the HKGBC at the expense of the Applicant upon the decision by the HKGBC to terminate the registration of Applicant’s premise.
9.4 The Energy Performance Certificate and Label are not allowed to be displayed in any buildings other than the registered address.
9.5 Applicant may only use the Energy Performance Certificate and Label on publicity materials or advertisements with the prior written approval from the HKGBC Secretariat.
9.6 Using the Energy Performance Certificate and Label on publicity materials or advertisements, reprinting and displaying in premises other than the registered address of the premises and so on without the explicit permission of the HKGBC Secretariat shall be considered as unauthorised use of the Energy Performance Certificate and Label which may lead to the termination of registration.
9.7 Notwithstanding anything to the contrary in these Terms, the Energy Performance Certificate and Label shall expire immediately and shall become invalid immediately upon the carrying out of any material renovation works to the Applicant’s building and/or any material modification to the Applicant’s electrical and mechanical equipment, as determined in the sole discretion of the HKGBC.
10 TERMINATION OF LABEL USE
10.1 The Secretariat has the right to terminate the registration of the premise and use of Energy Performance Certificate and Label of the Applicant at its sole and absolute discretion with the approval of the HKGBC for any of the following reasons:
(a) The Applicant fails to prove of the genuineness of the application data;
(b) The Applicant behaves in a dishonest or fraudulent manner which jeopardizes or damages the reputation or interests of the Scheme;
(c) The Applicant fails to maintain the energy performance of the building
10.2 Upon the notification of termination, the Applicant shall return the Energy Performance Certificate and Label to the Secretariat within 2 weeks.
10.3 In the event that the certification status is terminated, the Applicant shall immediately cease the use of any advertisement bearing the Certificate or Label.
10.4 The premises which have had its Energy Performance Certificate and Label terminated may re-apply for certification 6 months after the termination.
10.5 The Applicant must follow the application procedures like a first time application for re-application and pay the application fee. The Secretariat reserves the right to reject, with the approval of the HKGBC, any such re-application if it sees fit to do so in order to protect the reputation or interests of the Scheme.
11. THIRD PARTY MATERIAL
11.1 You acknowledge and agree that the HKGBC shall not be obligated to, but reserves the right at its sole discretion, to actively monitor or exercise any control whatsoever over any Third Party Material. The HKGBC does not endorse, verify or otherwise certify any Third Party Material.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 You acknowledge and agree that the HKGBC or its licensors, own all legal rights, titles and interest, including any Intellectual Property Rights, in and to the Website the Assessment Tools and the Forms.
12.2 You acknowledge that any Intellectual Property Rights in any Website Content shall belong to the HKGBC and/or its licensors. You shall not modify, copy, rent, lease, loan, sell, distribute or create derivative works based on the Website Content (either in whole or in part) unless you have received the HKGBC’s express authorisation in writing.
12.3 Nothing in these Terms shall give you a right to use any of the HKGBC’s trade names, trademarks, service marks, logos or domain names.
12.4 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Website or Website Content.
13. NOTIFICATION OF INFRINGEMENT OF YOUR INTELLECTUAL PROPERTY RIGHTS
13.1 This Clause 13 is without prejudice to Clauses 16 and 17 of these Terms.
13.2 In the event that you believe any of your Intellectual Property Rights have been infringed on the Website by a User or any Third Party Provider, you may notify us in writing via our contact details stated at http://hkbest.hkgbc.org.hk/of/contact.html. To facilitate the processing of any notice received by us from you, you must include the following:
(a) a reference to this Clause 13.2 of the Terms;
(b) proof of your identity;
(c) your contact details;
(d) proof of your ownership of the Intellectual Property Rights;
(e) a copy of, and the hyperlinks to, the relevant item on or that part of the Website that allegedly infringes your Intellectual Property Rights; and
(f)a description of the alleged infringement.
13.3 Upon receipt of your notice and the required information stated in Clause 13.2, we may (in our sole discretion) take any action we deem appropriate, which may include any of the following:
(a) remove any listings and/or the alleged infringing Website Content; or
(b) notify the Third Party Provider responsible for the listing(s) regarding your claim of infringement of Intellectual Property Rights.
13.4 You shall indemnify and hold the HKGBC harmless from Losses arising out of and/or in relation to any Intellectual Property Rights infringement claim made by you, any amendment, deletion or removal of a Website Content (including Third Party Material) or termination or suspension of an Application pursuant to your Intellectual Property Rights infringement claim.
13.5 Any action taken by the HKGBC shall not be construed as any endorsement or rejection of any Intellectual Property Rights infringement claim. Any claims regarding Intellectual Property Rights infringement shall be resolved by the relevant parties.
14. HYPERLINKS
14.1 The Website may include hyperlinks to other websites, content or resources, which are hosted, offered or provided by third parties unrelated to the HKGBC. You understand and agree that:
(a) The HKGBC has no control over and does not monitor such third party websites, content, or resources;
(b) The HKGBC makes no guarantee or warranty, and is not responsible for any such external sites, content or resources (or any products, goods or services promoted, referred to or offered on such external sits or resources); and
(c) The HKGBC does not endorse any websites linked to the Website, or any advertising, products, goods, services or other materials on or available from such websites or resources.
15. APPLICANTS WARRANTIES
15.1 By submitting any of the Forms, an Applicant warrants that:
(a) the Applicant is validly registered and incorporated;
(b) the Applicant’s name and address provided by the Applicant is identical to the information on the Applicant’s Business Registration Certificate;
(c) all information submitted by the Applicant are accurate;
(d) none of the information submitted by the Applicant infringe and/or may infringe any rights, including intellectual property rights, belonging to a third party; and
(e) the Applicant has permission to provide the information submitted.
16. WARRANTIES AND DISCLAIMERS
16.1 All Website Content is for your general reference only, and any information on the Website is not intended to amount to any advice or recommendation on which you should rely on for any purposes.
16.2 All Website Content has been prepared by the HKGBC, on the basis of the most current information available to it. The HKGBC believes, to the best of its knowledge, that all information given is reliable, but makes no guarantee of its accuracy.
16.3 The HKGBC and all offices, organisations and personnel represented in the Website are not responsible for:
(a) any errors or omissions contained in this Website;
(b) any use or reference to this Website or any of the Website Content;
(c) any liability of any damages whatsoever arising out or related to this Website or the Website Content;
(d) any dealings between the Applicant and the BESTCOM Authorised Assessor for Application of the Scheme;
(e) any consequence arising as a result of applying for the Scheme, use of Energy Performance Certificate and Label, cessation of joining the Scheme, result of the publication or announcement of premises;
(f) This Clause 16.3 shall survive after termination or cessation of use of Energy Performance Certificate and Label.
16.4 The HKGBC and all offices, organisations and personnel represented in the Website reserve the right to make any changes to any Website Content without notice.
16.5 You expressly understand and agree that your use of the Forms, Assessment Tools and Website:
(a) is at your sole risk and that the Service and Website is provided “as is” and “as available”;
(b) does not form a “contract of sale” between the HKGBC and you, for the purposes of the Sale of Goods Ordinance (Cap. 26), as the HKGBC is not acting as a “seller” of any goods.
16.6 You are responsible to ensure that your use of the Website Content and any Third Party Material complies with your requirements and all applicable legal requirements.
16.7 The HKGBC and all offices, organisations, appointed contractors, agents affiliated to the company, or personnel shall not accept any responsibility or liability whatsoever in relation to any claims that may be against the said parties.
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