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Introduction

eBRAM has been appointed as the ODR service provider to provide e-negotiation, e-mediation, and e-arbitration services dedicated to the resolution of COVID-19 related disputes.

To provide speedy and cost-effective means to resolve disputes arising out from or in connection with the COVID-19 pandemic globally and locally, especially for those involving micro, small and medium-sized enterprises (MSMEs) that may be adversely affected or hard hit by the pandemic.

TERMS AND CONDITIONS of Services for COVID-19 Online Dispute Resolution Scheme

 

Please read the following terms and conditions (“T&C”) carefully as they apply to your use of our Services and ODR Platform (as further defined below).  If you do not accept these T&C, please do not use our Services and/or ODR Platform.  By clicking the “AGREE” button when you file your disputes with us or when you otherwise access or use the ODR Platform, such action constitutes your confirmation and agreement with these T&C. If you are accessing and using the ODR Platform and our Services in your personal capacity, these T&C are binding on you personally. If you are accessing and using the ODR Platform and our Services in your capacity as the representative of a body corporate, you represent, warrant and confirm that you are duly authorized. Your confirmation and acceptance of these T&C are made by you for or on behalf of your body corporate, where these T&C are binding on you and your body corporate.

 

1.              SERVICES

 

1.1           eBRAM International Online Dispute Resolution Centre Limited (“eBRAM”, “we” or “us”) operates, manages and administers the websites, online platforms and any other digital, online or mobile interfaces (whether now existing or invented or implemented in the future) (“ODR Platform”) for the COVID-19 online dispute resolution scheme (“Scheme”) through which disputes may be processed and settled between the claimant and respondent parties by negotiation, mediation, and/or binding arbitration heard before the mediator or arbitrator, as the case may be (“Services”), in accordance with the then effective version of eBRAM’s Rules and Personal Data Collection Statement for the Scheme (respectively, “eBRAM Rules” and “eBRAM PICS”).

 

1.2           The terms "you", “your” and "User" in these T&C refer to the claimants, respondents, mediators and/or arbitrators who are using the ODR Platform and/or eBRAM’s services (as the case may be) under the Scheme.  Depending on context, the terms “you”, “your” and “User” in these T&C may also refer to any individuals and/or entities who are accessing and browsing the ODR Platform as visitors only (i.e. not using the ODR Platform as a claimant, respondent, mediator or arbitrator, as the case may be), and where the context so admits, the relevant provisions of these T&C would also generally apply to your visits, accessing and browsing activities on the ODR Platform.

 

1.3           eBRAM may from time to time update these T&C, and will notify Users by posting the revised version on the relevant websites of the ODR Platform. Users are responsible for reviewing these T&Cs regularly, and your continued access and use of the ODR Platform and/or our Services after any such posting shall constitute your agreement and acceptance of such revised T&C.  If any such revision is unacceptable to you, you should stop accessing and using the ODR Platform and our Services.

 

1.4           Our Services may be subject to additional terms and conditions governing their provision (including but not limited to eBRAM Rules and eBRAM PICS), which additional terms will be made known to you upon you expressing your intent to use those services. Those additional terms and conditions are hereby incorporated by this reference to also form as a part of the agreement between eBRAM and Users for or in relation to eBRAM’s provision of the Services and the Users’ access and use of the ODR Platform for dispute resolution.

 

1.5           If you have any questions about these T&C, or about accessing and using the ODR Platform, please contact us at info@eBRAM.org

 

2.              ODR PLATFORM

 

2.1           The ODR Platform together with any and all Content (as further defined below) created for, contained in and/or otherwise provided or made available as part of our Services and/or the ODR Platform (including but not limited to all versions, medium, forms and formats thereof, and all improvements, modifications, amendments, adaptations, new and/or derivative works created therefrom and thereto) is our property owned by us, or is licensed by us from our relevant licensors. All the aforesaid works are owned by us and/or our licensors (as the case may be) and are protected by intellectual property rights (including but not limited to copyright, trade mark, patent, design, rights in computer software and databases) and/or any other intellectual property rights, proprietary rights, and equivalent or similar rights anywhere in the world.

 

2.2           For the purpose of these T&C, “Content” means any and all information, data, text, software, computer programs (including source codes, object codes and HTML codes), music, sound, photographs, graphics, still pictures, trade marks, service marks, trade dress, get-up, marks, signs, logos, icons, button icons, clips, database, tables and data compilations, templates, forms, directories, links, video, audio-visual contents, moving pictures (whether animated or not), animations, graphical user interface, merchandise, business materials, advertisements, messages and/or any other materials (or any compilations or combinations of them) that may be developed for, or incorporated or contained in the ODR Platform by eBRAM (and/or its licensors) or that may otherwise be created, published, displayed on or made available by eBRAM to Users on or through the ODR Platform and/or our provision of the Services.

 

2.3           Subject to the provisions of these T&C, eBRAM grants Users with a limited, non-exclusive and revocable license to access and use the ODR Platform only for the purpose of browsing the relevant sites of the ODR Platform and/or for using eBRAM’s services and the ODR Platform for online dispute resolution with the relevant claimant or respondent parties involved in your dispute under the Scheme.  Save for such limited permissible use under license, you have no rights in or to the ODR Platform and/or the Content (or any part thereof), and you will not use the ODR Platform and/or the Content (or any part thereof) in any way or manner for any other purposes.  Nothing in these T&C shall be construed or operate to grant any rights of ownership or other proprietary rights or interest in or to the ODR Platform and/or Content (or any part thereof) to any User.

 

2.4           Unless you have obtained our prior expressed written permission, you must not copy, reproduce, issue or make available copies, alter, adopt, extract, mirror, reverse engineer, decompile, disassemble, modify, publish, transmit, distribute, redistribute, exchange, transfer, translate, participate in the transfer or sale of, create any new or derivative works of, or in any other way whatsoever exploit or otherwise deal in or with, the ODR Platform and/or any of the Content (whether in whole or in part), or attempt to do any of the foregoing prohibited acts.

 

2.5           For any materials or documents downloaded on or through the ODR Platform and/or obtained during our provision of Services to you (“Downloaded Materials”), if any, you hereby agree and undertake that you will only use those Downloaded Materials for the permitted licensed purposes set out in Clause 2.3 above, or otherwise for the purposes of facilitating your rights protection and/or enforcement in relation to your disputes with the relevant claimant or respondent parties involved in the Scheme.

 

2.6           Your mobile network operator may charge you the relevant local, international and/or data roaming fees, costs and charges (as applicable) for accessing and/or using the ODR Platform (whether within or outside of Hong Kong) and these charges may vary. You are solely responsible for arranging the relevant data plan for your device and for all of these data fees, costs and charges with your mobile network operator.

 

2.7           We recognize and understand that Users are concerned about their privacy and how their personal data are being handled and processed. We pledge to comply with the applicable requirements of the Personal Data (Privacy) Ordinance (Cap. 486 of the Laws of Hong Kong) and other applicable data protection laws. Before providing your personal data to us (whether on or through the ODR Platform or otherwise), please refer to eBRAM PICS for further details about our personal data privacy policy and practices in relation to the collection, use, transfer, processing and handling of personal data on or through the ODR Platform and/or our Services.

3.              USER COVENANTS

 

3.1           You are fully responsible for your access and use of the ODR Platform, your conduct and activities on the ODR Platform, and all your User-Generated Contents (as further defined below) whether publicly posted or privately transmitted by you (or on your behalf) on or through the ODR Platform.

 

3.2           As a condition of your access and use of the ODR Platform, you agree that you will not access and use the ODR Platform for any purpose which is unlawful or prohibited under any applicable laws or these T&C. Without limiting the generality of the foregoing, you agree not to:

 

a.       access or use the ODR Platform (or any parts thereof) for any unauthorized purposes; or trespass, hack, break into, access, use, or attempt to trespass, hack, break into, access or use any restricted parts of the ODR Platform, and/or the computer systems, servers, networks and/or any data areas hosting or operating the ODR Platform for which you have not been authorized by us;

 

b.       upload, submit, post, disseminate, reproduce, share, transfer, publish, distribute or otherwise transmit in any way, medium, form or manner whatsoever, any unlawful, fraudulent, misleading, libellous, defamatory, indecent, obscene, pornographic, profane, threatening, abusive, hateful, discriminatory, offensive, infringing or otherwise objectionable or unreasonable User-Generated Contents of any kind, character or nature, including without limitation any transmissions constituting, or encouraging conduct that may constitute or give rise to, any criminal and/or civil liability, or otherwise violate any applicable laws, or infringe our rights and/or any rights of our licensors and/or any other third parties (including but not limited to any intellectual property rights, proprietary rights, or confidentiality obligations);

 

c.        post, disseminate, publish, distribute or transmit any information or contents that may relate to or otherwise contain any advertisement, solicitation, chain letter, pyramid scheme, investment scheme or opportunity, or other unsolicited electronic commercial communications, or otherwise engage in spamming or flooding;

 

d.       post, publish, transmit, reproduce, copy, extract, use, distribute, exploit, translate, or otherwise deal in or with any Content (or any parts thereof) obtained through the ODR Platform in any way for any unauthorized purposes;

 

e.       upload, download, post, publish, transmit, reproduce, copy, extract, adapt, modify, exploit, translate, distribute or otherwise deal in or with in any way, any works or component of the ODR Platform itself or any Content (or any parts thereof) obtained or otherwise available through the ODR Platform which is protected by any intellectual property rights or any other proprietary right, or create new or derivative works thereto or therefrom, without the prior written permission from us and/or the relevant third party rights owners of those works;

 

f.         transmit, post, disseminate or upload any User-Generated Contents to the ODR Platform that contain viruses, Trojan horses, worms, time bombs, cancel bots, malware, spyware, or any other malicious, harmful or deleterious elements or programs designed or worked to interrupt, disrupt, destroy or limit the operation and/or functionality of the ODR Platform (or any parts thereof), or any computer programs, applications, software, hardware, telecommunication equipment and/or any computing devices, systems, networks, servers or infrastructure through the ODR Platform;

 

g.       post, publish, transmit, distribute, post or upload to the ODR Platform any documents, materials or works in any of your User-Generated Contents that may be protected by intellectual property laws, rights of privacy, rights of publicity, other proprietary rights and/or any other rights protected under any applicable laws, unless you are the owner or have control of the rights thereto, or have otherwise received all relevant consent, permission, approval or license for your dealings with those documents, materials or works;

 

h.       interfere with or disrupt networks connected to the ODR Platform or violate the regulations, policies or procedures of such networks;

 

i.         attempt to gain unauthorized access to the ODR Platform, computer systems or networks connected to the ODR Platform, through password mining or any other means;

 

j.         disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other Users of the ODR Platform are able to type or interact, or otherwise act in a manner that negatively affects other Users’ ability to access and/or use the ODR Platform or the normal operation of the ODR Platform;

 

k.        “stalk”   or otherwise harass any other person (including but not limited to any other Users), whether online or offline; or

 

l.         collect, provide, use, upload, transmit or store on the ODR Platform any personal data of any other person (including but not limited to any other Users) without obtaining their prior authorization or consent, unless your dealings of such data are exempted under any applicable laws (if any).

 

3.3           We reserve the rights from time to time, without notice, to monitor, observe and record your access to and use of the ODR Platform to investigate and determine if you are complying with these T&C and/or for the purposes of the protection and/or enforcement of our relevant rights and interests in the event of any contravention by any Users of these T&C and/or any application laws, as the case may be.

 

4.              USER GENERATED CONTENTS

 

4.1           For the purpose of these T&C, “User-Generated Contents” means any and all information, documents, data, files, messages, posts, texts, photographs, videos and/or any other works or materials (in any format, form, media or medium) that Users may provide, make available, upload, transmit, send, post, publish, disseminate, submit to, or share with eBRAM on or through the ODR Platform or otherwise in relation to eBRAM’s provision of the Services.

 

4.2           We do not monitor, preview, edit, screen or vet any User-Generated Contents that may be submitted, provided, posted, published, disseminated, uploaded, shared, transmitted or otherwise sent by (or on behalf of) any Users to, on or through the ODR Platform. Users shall remain fully liable and responsible for their acts, omissions, conduct, interactions, activities, access and use of the ODR Platform, including but not limited to any and all of their User-Generated Contents and the accuracy, legality, integrity and/or quality of such contents. We are not responsible for, and do not endorse, warrant or otherwise guarantee any information contained in any such User-Generated Contents and/or the accuracy, legality, integrity and/or quality of any such User-Generated Contents.

 

4.3           Should any rights owners intend to file any complaints concerning any illegal, infringing or inappropriate User-Generated Contents displayed on the ODR Platform, please contact us by post (marked “Attention: eBRAM ODR Platform – Complaint on User-Generated Contents”), with the relevant documentations for rights assertion and particulars of the complaint by email to complaint@ebram.org.

 

4.4           We reserve the right to remove, without warning or prior notice, any User-Generated Contents from the ODR Platform in our sole and absolute discretion.

 

4.5           Under no circumstances will we be liable or responsible in any way whatsoever for any User-Generated Contents, including but not limited to any errors or omissions in any User-Generated Contents, or for any loss, damage, cost and/or expense of any kind that may be suffered or incurred by any Users as a result of their interactions with, reliance and/or use of any User-Generated Contents on, through or from the ODR Platform.

 

5.              DISCLAIMER

 

5.1           All Services and the ODR Platform, together with any new functions or features that augment or enhance the Services and/or the ODR Platform currently offered, shall, unless explicitly stated otherwise, be subject to these T&C and the other related policies and documents forming part of the agreement between eBRAM and Users as stated above. You understand and agree that the Services and the ODR Platform are provided on an "AS-IS" and “AS AVAILABLE” basis. To the fullest extent permissible under applicable laws, we disclaim and make no representations, guarantees or warranties of any kind (whether express, implied, statutory or otherwise) for or in relation to the operation, functionalities, features, access or use of the ODR Platform, any information, Contents and/or Services provided on the ODR Platform, and/or the accuracy, adequacy, timeliness, availability, usefulness and/or completeness of the ODR Platform, Contents and/or Services provided on or through the ODR Platform (of any components or parts thereof). Any information provided on the ODR Platform is for reference only. Without prejudice to the generality of the foregoing, to the fullest extent permissible under applicable laws, we disclaim any and all guarantees, representations or warranties (whether express, implied, statutory or otherwise) of any kind, nature or character, including but not limited to any representations, guarantees or warranties as to:

 

a.       the availability and compatibility of the ODR Platform with the device and equipment (hardware or software) that you may use to access or use the ODR Platform, or that access and/or use of it will be uninterrupted or secure, or defect/error-free, or that defects and/or faults will be corrected;

b.       the accuracy, adequacy or completeness of any information or Content the ODR Platform;

 

c.        the merchantability, standard of quality or fitness for any particular purpose of any Contents and/or Services available or provided on or through the ODR Platform;

 

d.       non-infringement of any third party rights (including but not limited to intellectual property rights) by the ODR Platform and/or our Services; or

 

e.       The ODR Platform, and/or the relevant systems, networks and servers that host and make the ODR Platform available, are free of viruses, malware and/or any other harmful, malicious, contaminating, unsecure or destructive properties, or that no loss or damage (including but not limited to any data loss or data corruption) will occur to your computer or mobile device (including but not limited to electronic devices, mobile phones, smartphones, tablet computers, laptops and computers).

 

5.2           To the fullest extent permissible under applicable laws, no warranty, guarantee and/or representation (whether expressed, implied or otherwise) is provided as to the availability, the service levels or up-time of the ODR Platform, and that eBRAM assumes no responsibility for the timeliness, deletion, mis-delivery or failure of the provision of any functions of the ODR Platform and/or the delivery of the Services. You understand that the technical processing and transmission of the Services may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting systems, networks or devices. eBRAM shall, accordingly, in no circumstances, be liable for any failure of any functions of the ODR Platform or the delivery of the Services (whether in whole or in part) or for your inability to gain access (whether in whole or in part) to any or all such functions or Services due to the delay or failure of any communication networks or any party providing such access.

 

5.3           You further acknowledge and agree that, given the nature of the Internet, we cannot guarantee that any transmission of personally data or other identifiable information, other information, documents, or other communications on or through the ODR Platform and/or otherwise under, relating to, or in connection with the Services is completely secure.

 

6.              PASSWORD AND ACCOUNT SECURITY

 

6.1           In the event that you are a claimant, a respondent, or a representative of either party in the dispute, or if you are a mediator or arbitrator involved with a dispute proceeding administered by eBRAM, eBRAM may issue a password to you for your user account (respectively, “Account” and “Password”). You are responsible for maintaining the security and confidentiality of your Account and Password, and shall be fully responsible for all activities that occur in your Account or otherwise from your access and use of the ODR Platform. You shall (a) immediately notify eBRAM of any unauthorized use of your Password or any other breach of security to your Account and (b) ensure that you log-off from your Account at the end of each visit to the ODR Platform. eBRAM shall not be liable for any loss, damage, costs and/or expenses of any kind, nature or character arising from your failure to comply with this Section 6.

 

6.2           You acknowledge that the Account and Passwords issued to you by eBRAM are confidential and you shall take all necessary actions, precautions and safeguards to maintain the security and confidentiality of your Account and Passwords. You agree that under no circumstances will you disclose your Account information and Password to any other person(s), other than eBRAM in the case of requiring assistance with your Account and/or Password (including but not limited to any Password reset), without the prior written consent of eBRAM. Any words, action or conduct whether intentional or unintentional, by you in breach of any obligations or requirements in this Section 6shall render you fully liable to compensate and indemnify eBRAM for all losses, damages, costs and/or expenses thereby caused, incurred or suffered by eBRAM (and/or any of the relevant eBRAM Indemnified Parties as further defined below). You hereby agree and acknowledge that the use of the ODR Platform and/or eBRAM’s Services by any person whatsoever (whether authorised by you or not) with the Account and Password issued to you by eBRAM shall constitute and be deemed as use of the ODR Platform and/or eBRAM’s Services by you. You shall notify eBRAM immediately of any actual or suspected unauthorised use of your Account and Password, and shall confirm the same in writing without delay to eBRAM. You shall be fully liable to compensate and indemnify eBRAM (and/or any of the relevant eBRAM Indemnified Parties) for all losses, damages, costs and/or expenses that may be incurred or suffered by eBRAM in respect of any access and/or use of your Account and Password (whether authorised by you or not).

 

6.3           You acknowledge and agree that eBRAM is only responsible for verifying any Passwords issued to you, and that eBRAM shall not be liable in respect of:

 

a.       any loss, damage, costs and/or expenses incurred or suffered by you or any other person from or as a result of any failure to effect or execute instructions relating to your Account and/or Password through various electronic delivery channels or perform any requests or obligation relating to your Account and/or Password, where such failure is attributable (whether directly or indirectly) to any circumstances or events outside of eBRAM’s control: or

b.       any other loss, damage, costs and/or expenses whatsoever incurred or suffered by you or by any other person as a result of any instructions placed through various electronic delivery channels under with the correct log-in of your Account and/or Password.

 

7.              INDEMNITY

 

7.1           You agree to indemnify in full and on demand, defend and hold harmless eBRAM, its directors, officers, affiliates, associated or related entities, agents, representatives, partners, staff and employees (collectively, “eBRAM Indemnified Parties”) from and against any and all claims, proceedings, damages, losses, injuries, liabilities, demands, actions, costs and/or expenses (including legal fees) arising from, or that may be incurred or suffered (whether directly or indirectly) by us and/or any of the relevant eBRAM Indemnified Parties, from or in connection with (i) your acts or inaction in breach of these T&C, and/or (ii) your access and/or use of the Services and/or the ODR Platform. We may, if necessary, take conduct of and participate in the defence of any claims, disputes, proceedings or actions against us or any of the relevant eBRAM Indemnified Parties and/or any negotiations for settlement. No settlement that in our opinion may adversely affect the rights or obligations of any or all of the eBRAM Indemnified Parties shall be made without eBRAM’s prior written approval. We reserve the right to assume exclusive defence and control of any such claims, disputes, proceedings or actions.  For avoidance of doubt, this clause is for the benefit of the eBRAM Indemnified Parties, each of which relies on the benefit and protection conferred, and we hereby accept such benefits on behalf of each and all of the eBRAM Indemnified Parties.

 

8.              LIMITATION OF LIABILITY

 

8.1           Without limiting any exclusions or disclaimers specifically provided for in these T&C, to the fullest extent permitted under applicable laws, eBRAM’s aggregate liability (whether under contract, tort or otherwise) to any User for any direct loss, damage, costs and/or expenses suffered or incurred in connection with that User’s access and/or use of eBRAM’s Services and/or the ODR Platform shall be limited to that User’s actual direct loss, and in any case, not exceeding the amount of HKD$200 or the then effective online registration fees paid by that User to eBRAM for use of the ODR Platform (whichever is higher).

 

8.2           To the fullest extent as permitted under applicable laws, eBRAM shall not be liable or responsible in any way (whether under contract, tort or otherwise) for any indirect losses, damages, costs and/or expenses (including but not limited to legal fees and expenses) of any character, nature or kind that may be incurred or suffered by you arising from or in connection with your access and/or use of eBRAM’s Services and/or the ODR Platform.

 

8.3           eBRAM is not responsible or liable for any and all infringing, threatening, defamatory, obscene, indecent, offensive or illegal content or conduct of any other parties (including any other Users of the ODR Platform) or any infringement of any other parties’ rights (including intellectual property rights) by any other party (including any other Users of the ODR Platform). We are not liable or responsible for any User-Generated Contents and/or any Linked Sites that may be made available in the ODR Platform.

 

8.4           Without prejudice to the generality of the provisions under the sections on “Disclaimer” and “Limitation of Liability” under these T&C, we are not responsible or liable for any disruption or non-availability of the ODR Platform (and/or any third party tools and technologies, if any, that may be used or implemented for the operation of the ODR Platform) and/or our Services resulting from any causes beyond our control, including but not limited to any Internet service provider/ISP equipment failure, push server failure, push service delays, data transmission failure, data reception failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and censorship, acts of God, pandemic, epidemic or public health emergencies, and/or any act of government or regulatory bodies in relation to the provision of the ODR Platform and/or our Services.

 

8.5           All Content, Services and any other materials and information provided in the ODR Platform are intended for Users’ general information only. No part of the ODR Platform is intended to constitute any advice, recommendations, endorsement, approval or suggestion from eBRAM, and should not be relied upon when making any decisions or taking any actions of any kind. You shall carry out independent checks and judgment when using the ODR Platform and/or Services and other materials and information included or provided therein.

 

8.6           Each and all of the disclaimers and limitations of liability contained in these T&C shall apply to the fullest extent as permitted under applicable laws. For the avoidance of doubt, nothing in these T&C shall exclude eBRAM’s liability for death or personal injuries caused by our own negligence, or any other liability (e.g. your statutory consumer rights) which we cannot lawfully restrict, exclude or limit under applicable laws.

 

9.              MODIFICATIONS TO SERVICES AND ODR PLATFORM

 

9.1           eBRAM reserves the right at any time and from time to time, for any reason in our sole and absolute discretion, to update, improve, modify, suspend or discontinue, whether temporarily or permanently, the Service and/or ODR Platform (or any part thereof) with or without notice. For avoidance of doubt, to the fullest extent permissible under applicable laws, no warranty, guarantee or representation (whether expressed, implied or otherwise) is provided as to the availability, service levels or up-time of the ODR Platform. You agree that eBRAM shall not be liable to you or to any third party for any such modification, unavailability, downtime, suspension or discontinuance of the Service and/or ODR Platform (or any parts thereof).

 

9.2           We may, in our sole and absolute discretion, from time to time update any Contents (including but not limited to any information on the Services and/or any links to any Linked Sites, as further defined below) that we may make available on the ODR Platform for your general information and reference. We may, in our sole and absolute discretion, provide Services to the Users through the ODR Platform or any other means/channels as we may consider appropriate.  We are under no obligation to provide or arrange for any of the Services requested or applied by you through the ODR Platform, and we may revise, suspend, terminate, extend or reduce the availability, types or scope of the Services and/or the relevant features or functions of the ODR Platform as we consider appropriate from time to time. To the fullest extent as permitted under applicable laws, we are not liable for any delay or failure in providing or arranging for the Services and/or the ODR Platform.

 

10.           THIRD PARTY LINKS

 

10.1       The ODR Platform contain links to other sites or pages or contents from other third parties on the Internet (“Linked Sites”), which are provided, operated and managed by their respective third party service operators/providers, and which are not maintained or controlled by eBRAM. eBRAM is not responsible or liable for the information, links and contents of any Linked Site, or any information, products or services that those third party service operators/providers may offer on or through any Linked Sites. We provide the Linked Sites to Users for their general information, reference and sake of convenience only. The provision of any information and/or listing of Linked Sites on the ODR Platform do not in any way constitute our association, affiliation, advice, recommendation, suggestion and/or approval of any Linked Sites and/or their operators/service providers, and we do not endorse any Linked Sites or its/their information, contents or any products or services offered on or through any Linked Sites.

 

10.2       When you activate any such links to the Linked Sites, you leave the ODR Platform and access any such Linked Sites at your own risk. You are solely responsible for your activities on any Linked Sites, and/or for relying or using information provided on any Linked Sites, and/or for using or purchasing any contents, products or services that may be offered on or via any Linked Sites. Any transactions and/or disputes in relation to any Linked Sites shall be dealt with between you and the relevant third party service operators/providers of those Linked Sites, and shall be entirely at your own risks and decision.

 

10.3       You further acknowledge and agree that eBRAM shall not be responsible or liable, whether directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access and/or use of any Linked Sites, the use of or reliance on any such content, information, materials, goods or services available on or through any Linked Sites, and/or any transactions and/or disputes with those third party service operators/providers in relation to any Linked Sites.

 

11.           TERMINATION

 

11.1       Without prejudice to any other rights and/or remedies that we may have under these T&C and/or under any applicable laws, we may terminate your access to and use of our Services and/or the ODR Platform (whether in whole or in part) at any time with immediate effect and in our sole and absolute discretion for any reason, with or without notice, including under the following circumstances:

 

a.       if you breach these T&C, or violate our rights and/or the rights of any other third parties (including intellectual property rights, privacy rights, image/personality rights, or any other proprietary rights), or contravene any applicable laws;

b.       if we are unable to verify any information (including but not limited to any personal data) that you provide to us on the ODR Platform and/or in the course of our provision of Services; and/or

c.        if we consider your action may adversely affect the operation of the ODR Platform or other Users of the ODR Platform, or is unsuitable or inappropriate for any other reason.

 

11.2       You may, by giving 5 working days’ prior written notice to us, terminate your access and use of the ODR Platform and/or our Services at any time. Upon termination, you should cease accessing or using the ODR Platform and/or our Services. eBRAM’s fees (including online registration fees) charged in relation to the Services and/or ODR Platform are non-refundable.

 

12.           GOVERNING LAW AND DISPUTE RESOLUTION

 

12.1       These T&C shall be construed in accordance with, and governed by, the laws of the Hong Kong Special Administrative Region of the Peoples' Republic of China ("Hong Kong"), without regard to or giving effect to any principles of conflict of laws.

 

12.2       For any disputes, differences, actions, claims or demands arising therefrom or otherwise relating to these T&C (whether contractual or non-contractual), eBRAM and Users shall irrevocably submit to the exclusive jurisdiction of the Hong Kong courts.

 

13.           GENERAL AND MISCELLANOUS

 

13.1       ENTIRE AGREEMENT – These T&C (and their related agreements, policies and documents as incorporated herein), and any revised version thereof, constitutes the entire agreement between eBRAM and Users in relation to the access and/or use of eBRAM’s Services and/or the ODR Platform.

 

13.2       Severability - If any one or more of the provisions (or any parts thereof) of these T&C, or their application in any circumstance, is held to be invalid, illegal or unenforceable in any respect under any applicable laws or for any other reason by any court of competent jurisdiction, then such provisions (or the relevant parts thereof) shall be deemed severed from these T&C without affecting the validity, legality and enforceability of any remaining provisions of these T&C.

 

13.3       THIRD PARTY RIGHTS - Except for the relevant eBRAM Indemnified Parties or otherwise as stated in these T&C, any person who is not a party to these T&C shall have no right to enforce any of the provisions of these T&C under the Contract (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) or any laws (whether statute, common law or otherwise) on the rights of third party in contracts under any other applicable jurisdictions. For any rights conferred on third parties by these T&C, their consent is not required to rescind or vary these T&C.

 

13.4       Parties’ relationship - Nothing under these T&C shall be construed or operate to create any business association, business affiliation, partnership, joint venture, principal-agent, employer-employee, trustee-fiduciary relationship or any other equivalent or similar relationships.  Neither party shall have the right or authority or power to bind, or hold out to represent, the other party.

 

13.5       WAIVER - No waiver of any breach of these T&C will amount to a waiver of any further or other breach. Any waiver of any provision of these T&C would only be effective if expressed in writing and signed by us.

 

13.6       INTERPRETATION - Unless the context otherwise requires, these T&C should be construed using these rules of interpretation: (1) words importing one gender include other genders; (2) words importing the singular shall include the plural and vice versa; (3) references to clauses are references to clauses in these T&C; (4) any words and expressions defined in the main body of these T&C bear the defined meaning in the whole of these T&C; (5) a right granted or reserved may be exercised from time to time; (6) headings and sub-headings are for ease of reference and shall not affect the interpretation of these T&C; (7) use of the word “including” or “include” means “including but not limited to”; and (8) any reference to a person shall include that person's successors, representatives and permitted assigns.

 

13.7       ONLINE REGISTRATION FEES: 

The Parties shall pay total amount of HK$400 (i.e. HK$200 per Party) by one of the following options:

1)     By Cash deposit  and submit their electronic receipt(s) for payment of online registration fees for the Scheme made to “eBRAM International Online Dispute Resolution Centre Limited” (bank account detail: HSBC account number #741-287155-838) in the total amount of HK$400 (i.e. HK$200 per Party);

2)     By Master Card, Visa or Unionpay.

The Parties hereby confirm their agreement and acceptance of the above provisions, and have duly executed this Agreement (either in his/her own capacity, where the Party is an individual; or in his/her capacity as the duly authorized signatory/representative of a body corporate, where the Party is a body corporate, as the case may be).

 

 

 

 

I acknowledge that I have read and fully understand the above document namely, TERMS AND CONDITIONS OF SERVICES FOR COVID-19 ONLINE DISPUTE RESOLUTION SCHEME and I confirm my agreement to all the terms contained therein.

Personal Information Collection Statement

for eBRAM’s COVID-19 Online Dispute Resolution Scheme (“eBRAM PICS” or “PICS”)

 

This PICS applies to collection, use, processing and handling of personal data of Users by eBRAM International Online Dispute Resolution Centre Limited (“eBRAM”) on or through the ODR Platform (under Hong Kong’s Personal Data (Privacy) Ordinance (“PDPO”) and other data protection laws as and where applicable, if any) for eBRAM’s operation of the ODR Platform and provision of the Services set out in eBRAM’s T&C.

 

Unless otherwise specifically defined herein, the meaning of the relevant defined or capitalized words and phrases in this PICS shall adopt the same meaning as set out in eBRAM’s T&C. For the avoidance of doubt, references to “personal data”, “data users”, “data subjects” and “data processors” in this PICS shall adopt the same legal meaning as defined in the PDPO. By default, eBRAM’s handling of personal data are in accordance with the requirements of the PDPO, but where any other data protection laws of other jurisdictions (e.g. the EU General Data Protection Regulations (“GDPR”)), if any, applies to the Personal Data of any particular User (if any and where applicable), we will follow the relevant requirements under those other foreign laws as and where applicable.

 

We may from time to time update this PICS, and will notify Users by (i) posting the revised version of this PICS on the relevant websites of the ODR Platform and (ii) sending notification of the revised version of this PICS to Users via email. Users are responsible for reviewing this PICS regularly, and your continued access and use of the ODR Platform and/or use of our Services after any such posting shall constitute your agreement and acceptance of such revised PICS. If any such revision is unacceptable to you, you should stop accessing and using the ODR Platform and our Services, and we will delete your Personal Data from our server in accordance with our internal data destruction policy.

 

1.              Personal Data

 

1.1.         This PICS applies to any and all personal data that Users provide or otherwise make available to eBRAM (whether on or through the ODR Platform and/or otherwise via email, direct contact or other medium for or in the course of eBRAM’s provision of the Services), and such personal data may include, but are not limited to, as the case may be depending on the applicable context:

 

1.1.1.                       the name, phone number, email address, proof of identity information (such as but not limited to identity card number and/or passport number), username, password and other credentials for accessing and using the User Account on the ODR Platform, bank account or credit card information in the case of Party A and/or Party B using the Scheme as the relevant data subjects; and/or

 

1.1.2.                       the name, contact details and any other personal data of mediators and arbitrators of the Scheme in the case of mediators and/or arbitrators as the relevant data subjects; and/or

 

1.1.3.                       any other personal data of the Party A and/or Party B and/or any third parties (if any) that may be contained in any materials, articles and documentary evidence that the parties in dispute may disclose or submit on or through the ODR Platform to eBRAM, the mediators and/or arbitrators (as the case may be) for or relating to the dispute resolution process and proceedings under the Scheme and/or eBRAM’s provision of the Services; and/or

 

1.1.4.                       logs and recordings of telephone calls made to and from eBRAM’s service hotlines and/or inquiries telephone numbers, through which Personal Data may be disclosed or provided during the call and recorded in those logs and recordings,

 

collectively, the foregoing are defined in this PICS as “Personal Data”.

 

1.2.         In relation to the operation of, and/or visitors’ access and interactions on, the ODR Platform, our servers may also collect other non-personally identifiable data relating to visitors’ online session by automated means (such as but not limited to browser characteristics, operating system, IP address, domain name, language preferences, device characteristics, URLs, information on browsing activities taken, and dates and times of browsing activity).  Insofar as any or all of these data and information cannot personally identify you (“Non Personal Data”), they do not constitute “personal data” for the purpose of the PDPO, and nothing in this PICS shall limit or restrict our handling of any Non-Personal Data. Without prejudice to the generality of the foregoing, we will use Non-Personal Data to provide aggregated, anonymous, statistical information so that eBRAM may better meet the expectations and demands of visitors to its ODR Platform, and take necessary actions in respect of any illegal or unlawful contents on any parts of the ODR Platform visited through eBRAM’s servers.  For the avoidance of doubt, however, if any or all of these data and information becomes personally identifiable to any particular User (whether via the Users’ activities recorded after Account log-in, or otherwise mixed in the matrix of data held by eBRAM together with other data that constitute Personal Data as referred above), or if any of these data and information (e.g. IP address) are considered as “personal data” regulated under any applicable foreign personal data protection laws (e.g. GDPR) that is applicable to any particular User concerned (if any), such matrix of data as a whole, or such specific data and information in the case of that particular User (if any), will be treated as, and handled by eBRAM as, Personal Data in accordance with the provisions of this PICS.

 

1.3.         By submitting or otherwise making available any Personal Data to eBRAM (whether on or through the ODR Platform or otherwise), you hereby represent, warrant and confirm that you are either the owner or controller of those Personal Data or you have already obtained all relevant consents/authorizations from the relevant third parties (if any) for your use and provision of those Personal Data to us under the Scheme for the collection, use, transfer and handling by us (and our relevant Data Transferees as further specified below) in accordance with the provisions of this PICS. If you intend to provide any Personal Data relating to any other third parties to us, unless such provision fall within the scope of any exemptions (if any) under any applicable laws, please provide a copy of this PICS to that third party to enable him/her to understand how we handle Personal Data and obtain his/her consent/authorization prior to your disclosure and provision of his/her Personal Data to us. If any third parties’ Personal Data are involved but you have not obtained those third parties’ consent/authorization, unless your use and provision are exempted (if any) under applicable laws, you should not provide or disclose any of those third party’s Personal Data to eBRAM (whether on or through the ODR Platform or otherwise). You are deemed by your provision of those Personal Data to have secured and obtained all such third party’s consent/authorization (where applicable), and we are not responsible for any non-compliance on your part.

 

1.4.         For Party A and Party B, we will collect your identification information (i.e. Hong Kong identity card number and/or passport number) as part of your Personal Data, but we will only use such sensitive data under the Scheme for the limited purposes as further set out in Clause 2.5 below. For avoidance of doubt, we will not collect any Hong Kong identity card number and passport number of other parties who are not Party A or Party B under the Scheme, and we will instead adopt the less privacy intrusive alternative of only collecting and using their other non-sensitive personal data (e.g. name and contact details) for the purposes of the Scheme as further set out in the next section of this PICS.

 

2.              Purposes of Collection and Use of Personal Data

 

2.1.         We may need to collect and use Personal Data for the relevant purposes as further set out in Clauses 2.4 and 2.5 below. If you do not supply the relevant, up-to-date and accurate Personal Data that are marked mandatory/necessary/required for the relevant purposes concerned, we may not be able to provide you with our relevant Services and/or the features or functionalities of certain parts or aspects of the ODR Platform (whether in whole or in part) may accordingly be affected or not available to you.  For example, if you do not give us accurate and updated contact information when you submit inquiries to us, we will not be able to respond or follow-up with you. Also, if you do not provide all the required/ mandatory data fields in the registration form for filing dispute under the Scheme, we may not be able to further process your dispute filing request.

 

2.2.         Otherwise, where it is optional for you to provide Personal Data, it is entirely voluntary for you to decide whether or not to provide those optional/non-mandatory Personal Data to us.

 

2.3.         All Personal Data (whether mandatory or optional for you to provide) collected or otherwise obtained by eBRAM for or in connection with the ODR Platform and/or eBRAM’s Services under the Scheme will be handled in accordance with the provisions of this PICS.

 

2.4.         The objective of the ODR Platform and eBRAM’s Services is to facilitate dispute resolution via an online platform for parties in dispute in relation to those disputes that fall under the jurisdiction of the Scheme (as further specified in eBRAM’s T&C and eBRAM’s Rules for the Services). To facilitate such objective for the ODR Platform and eBRAM’s Services, we may collect and use Personal Data for one or more of the following purposes (if and where applicable) from time to time:

 

2.4.1.                       facilitate the provision, operation, management and administration of the ODR Platform and the Users’ Accounts thereunder;

2.4.2.                       process and manage User registration for the ODR Platform, and the Users’ relevant filings and submissions in relation to their dispute resolution process and proceedings under the Scheme;

2.4.3.                       providing the relevant mediators and/or arbitrators’ CV and relevant personal particulars to the Party A and Party B, and making such information available for public access, for or in connection with the operation of the Scheme and/or the parties’ selection of the relevant mediator/arbitrator candidates for appointment in the dispute resolution process and proceedings under the Scheme;

2.4.4.                       handle, administer and manage the relevant dispute resolution process and proceedings under the Scheme;

2.4.5.                       conduct identification and verification of identity, and the relevant due diligence checks;

2.4.6.                       investigate, handle and respond to any enquiries or complaints made by you, made against you or involving you in any manner;

2.4.7.                       analyzing, verifying, enforcing contractual rights, and/or checking Users’ credit, payment and/or status in relation to the provision of eBRAM’s Services to the relevant Users;

2.4.8.                       keeping relevant Users informed of the status of the Services supplied or made available by eBRAM;

2.4.9.                       communicate with you regarding any of the foregoing matters;

2.4.10.                   conduct survey, research and analysis to facilitate the provision and operation of the ODR Platform and/or the relevant Services provided by eBRAM;

2.4.11.                   maintaining and developing eBRAM’s business systems and infrastructure for or in relation to the Scheme, including but not limited to testing, upgrading, and technical support and maintenance of these systems (including but not limited to the ODR Platform);

2.4.12.                   facilitate protection and/or enforcement of the relevant rights and interests of eBRAM (as the operator and service provider of the ODR Platform and the Scheme) and/or you (as a User);

2.4.13.                   comply with any obligations or requirements for using or disclosing Personal Data that are imposed on eBRAM under any applicable laws, court order, or otherwise imposed by any government body, agency, regulatory authority, law enforcement agency, court or judicial body; and/or

2.4.14.                   any purpose(s) directly related to any of the above purposes.

 

2.5.         For Party A and Party B, as mentioned in Clause 1.4 above, we will collect your identification information (i.e. Hong Kong identity card and/or passport number) as part of your Personal Data, but we will only use such sensitive data under the Scheme for the limited purposes of:

 

2.5.1.                       avoiding abuse of process (e.g. with frivolous or sham claims) and wastage of Hong Kong Government’s public funding of, and eBRAM’s manpower and resources for, the Scheme by members of the public;

2.5.2.                       prevention and detection of fraud, impersonation, dishonesty, or other crime or unlawful or improper acts, conduct or malpractice;

2.5.3.                       conducting identification and verification of the identity of claimants and/or Party B, the relevant know-your-customer (KYC) and reasonable due diligence checks on parties in dispute;

2.5.4.                       where applicable, evidencing your legal or equitable ownership rights or interests of your property that is the subject matter of the dispute;

2.5.5.                       facilitating enforcement of the relevant mediated settlement agreement and/or arbitral award issued under the Scheme in the relevant jurisdictions (whether in or outside Hong Kong, as the case may be);

2.5.6.                       facilitate protection and/or enforcement of the relevant rights and interests of eBRAM (as the operator and service provider of the ODR Platform and the Scheme) and/or you as the User;

2.5.7.                       comply with any obligations or requirements for using or disclosing Personal Data that are imposed on eBRAM under any applicable laws, court order, or otherwise imposed by any government body, agency, regulatory authority, law enforcement agency, court or judicial body; and/or

2.5.8.                       any purpose(s) directly related to any of the above purposes.

 

Save for the aforesaid limited purposes or unless otherwise exempted under applicable laws, eBRAM will not use your Hong Kong identity card number and passport number for any other purposes without obtaining your prior express permission.

 

2.6.         Subject to any specific requirements (if any) under any applicable laws, we will retain Personal Data for such period/duration that is not longer than is necessary for the fulfilment of the relevant purposes (or any directly related purposes) for which the Personal Data is to be used.

 

2.7.         Save for the aforesaid list of purposes under this Section 2, we will not use Personal Data for any other new purposes without getting the relevant data subjects’ expressed prescribed consent in accordance with the requirements of the PDPO (and/or any other applicable data protection laws, if any and where applicable).

 

3.              Disclosure and Transfer of Personal Data

 

3.1.         We will keep your Personal Data confidential, but may disclose or transfer (in or outside of Hong Kong) Personal Data, as relevant and where needed, to one or more of the following classes of persons from time to time (collectively, “Data Transferees”) for the purposes set out in Section 2 above:

 

3.1.1.                       any person who owes a duty of confidentiality to us, including but not limited to eBRAM’s professional advisers, including its accountants, auditors, lawyers and other professional advisers, in relation to our operation and/or protection and enforcement of our rights and interests;

3.1.2.                       any holding company, parent, subsidiary, affiliated company or associated company (if any) of eBRAM which are involved in the provision and operation of the ODR Platform and/or the Services (or any parts thereof);

3.1.3.                       strictly on a need-to-know basis and subject always to any applicable contractual and/or non-contractual means (including but not limited on data protection and confidentiality) that eBRAM has implemented and imposed upon the following parties: eBRAM’s dealers, agents, contractors, sub-contractors, vendors and/or suppliers (including their employees, directors, officers, mediators, arbitrators, and agents) who provide services/support to us for or in connection with our operation and provision of the Services and/or ODR Platform;

3.1.4.                       government and regulatory bodies, authorities, law enforcement agencies, courts, judicial bodies and/or other organizations in Hong Kong or elsewhere, as required or authorized by or under applicable laws for the purposes of enforcing mediated settlement agreement and/or arbitral awards and/or requests for disclosure;

3.1.5.                       any person to whom we are under obligation or requirement to disclose under any court order;

3.1.6.                       any financial institutions, charge or credit card issuing companies, credit providers, credit information or reference bureau and/or collection or security agencies that are necessary to establish and process the Users’ payment for eBRAM’s provision of the Services and/or registration, access and use of the ODR Platform, and provide services to eBRAM in case of any failure in any such payment transactions (if any);

3.1.7.                       any authorized representatives and/or legal advisors of the Users, when requested by the relevant Users to do so; and/or

3.1.8.                       any proposed or actual assignee or transferee of all or any part of the eBRAM’s operation or business.

 

4.              Direct marketing

 

4.1.         eBRAM does not use Personal Data and/or provide Personal Data to third parties for direct marketing. If in the future eBRAM intends to conduct any such direct marketing activities, eBRAM may only do so provided that all the applicable requirements of the direct marketing regime of the PDPO (and the direct marketing requirements of any other data protection laws and regulations such as the GDPR, if any, as and where applicable) are fully complied with prior to any such intended use and/or provision (if any). You will at all times have the right to opt-out and object to the use of your Personal Data and/or provision of your Personal Data to any third parties for direct marketing purposes.

 

5.              Data Security

 

5.1.         We will take all reasonably practicable steps to maintain and ensure the security of Personal Data in accordance with the requirements of the PDPO. Amongst others, the physical records of Personal Data will be stored in secured places at our premises with restricted access controls. The electronic records (including back-ups) of Personal Data will be stored in our servers located in secured data rooms and data centers and protected by adequate IT and cybersecurity measures (including but not limited to controls on access and permission levels, log-in account and passwords, encryption and other relevant security measures). Only our authorized personnel (who have been trained to handle Personal Data properly and bound by duty of confidentiality) will have access to these records and servers on a “need-to-know” and “need-to-use” basis.

 

5.2.         Taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of processing, and the risks of varying likelihood and severity for the rights and freedoms of natural persons, eBRAM (and its data processors, if any) will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including but not limited to any or all of the following as appropriate: (a) the pseudonymisation and encryption of Personal Data;  (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.

 

5.3.         No data transmission over the internet or any other public network can be guaranteed to be completely secure. You are responsible for taking reasonably practicable means and precautions to safeguard the security of your computer and device against misappropriation or unauthorized use and access, and to safeguard the security and protection of Personal Data, your Account information and Password.

 

6.              Use of Cookies

 

6.1.         When you browse the ODR Platform, cookies will be stored in your computers, mobile phones or other devices for internal navigation and programming only. We may use cookies to track information about your access and use of the ODR Platform to facilitate better browsing experience for your access and use of the ODR Platform across multiple pages within or across one or more sessions.

 

6.2.         Cookies are text files that the ODR Platform send to your relevant devices to uniquely identify your browser or to store browser information or settings. Some cookies make it easier for you to navigate the ODR Platform by keeping record of your browser settings and preferences, whilst other cookies are used to enable a faster log-in process. This information may include, but is not limited to, relevant login and authentication details as well as information relating to your activities and preferences across the ODR Platform.

 

6.3.         You can edit your browser settings to disable cookies, and also provide your expressed decision/choice of your cookies setting on our cookies preference box, for your access and/or use of the ODR Platform. However if you disable cookies, you may not be able to access all parts of the ODR Platform, and some parts of the functionality and features of the ODR Platform may be affected.

 

7.              Third Party Linked Sites

 

7.1.         As stated in the T&C, the ODR Platform may contain Linked Sites that may be provided by third parties or other service providers. This PICS is not applicable to your access and/or use of any Linked Sites and your transactions and interactions with the information, contents, products and/or services that may be provided by any of those third parties in any of those Linked Sites, which shall be entirely at your own risks. For information about those third parties’ data privacy policies and practices, you may refer to those third parties’ privacy policy/personal data collection statement at the Linked Sites.

 

7.2.         eBRAM is not responsible or liable for the contents, information, products or services provided by any third party, and/or for your access, use, transactions and interactions with those third parties (whether on or via the Linked Sites or otherwise), and/or the collection and use of your Personal Data by any third parties, and/or the data privacy policies and practices of any of those third parties. Any dealings and disputes between you and any or all of those third parties shall be handled and resolved separately between you and those third parties.

 

8.              Indemnity

 

8.1.         You agree to indemnify in full and on demand, defend and hold harmless eBRAM, its directors, officers, affiliates, associated or related entities, agents, representatives, partners, staff and employees (collectively, “eBRAM Indemnified Parties”) from and against any and all claims, proceedings, damages, losses, injuries, liabilities, demands, actions, costs and/or expenses (including legal fees) arising from, or that may be incurred or suffered (whether directly or indirectly) by us and/or any of the relevant eBRAM Indemnified Parties, from or in relation to your breach of the relevant representations and/or warranties in this PICS (including those regarding your obtaining of the relevant third parties’ consent or authorization for your use and provision of those third parties’ Personal Data to eBRAM under the Scheme).

 

8.2.         No settlement that in eBRAM’s opinion may adversely affect the rights or obligations of any or all of the eBRAM Indemnified Parties shall be made without eBRAM’s prior written approval.

 

8.3.         For avoidance of doubt, Section 8 is for the benefit of the eBRAM Indemnified Parties, each of which relies on the benefit and protection conferred, and we hereby accept such benefits on behalf of each and all of the eBRAM Indemnified Parties.

 

9.              Data Subject Rights Requests

 

9.1.         You, as the data subject, have the rights to request access to and/or correction of your Personal Data in accordance with the PDPO or any other applicable data protection regulations. We will process any such requests in accordance with the requirements of the PDPO or any other applicable data protection regulations. We may impose a reasonable charge for processing your data access request to reimburse the relevant administrative costs and disbursements if such is authorized or required under the relevant application laws and regulations, and you will be informed in advance of any such charge (if any).

 

9.2.         If and where the GDPR is applicable to any particular User (if any), in addition to the data access and data correction rights referred above in Clause 9.1, subject to certain conditions, you have the right to have your Personal Data erased, to obtain restriction of the processing of your Personal Data, to data portability, to object to the processing of your Personal Data based on certain grounds, and the right at all times to object to the use of your Personal Data for direct marketing purposes. In the case of automated individual decision-making, you have the right to obtain human intervention, give your point of view, receive an explanation for the automated decision, and challenge that decision. You also have the right to lodge a complaint with a supervisory authority.

 

9.3.         For any inquiries on our data protection practices in this PICS and/or any data subject rights requests, please send your inquiries/requests by post (marked “Attention: the ODR Platform – data subject rights requests” to Data Protection Officer, Mr Daniel Lam of eBRAM (Email: info@ebram.org, Address: Room 403, 4/F, West Wing, Justice Place, 11 Ice House Street, Central, Hong Kong).

 

 

 

 

I acknowledge that I have read and fully understand the above document namely, Personal Information Collection Statement for eBRAM’s COVID-19 Online Dispute Resolution Scheme and I confirm my agreement to all the terms contained therein.

Terms of the ODR Agreement for the COVID-19 Online Dispute Resolution Scheme

 

IMPORTANT NOTICE: THIS IS A LEGAL DOCUMENT, PLEASE SEEK LEGAL ADVICE BEFORE SIGNING FOR PROTECTION OF YOUR INTERESTS

 

1.      AGREEMENT TO SETTLE DISPUTE UNDER THE COVID-19 ONLINE DISPUTE RESOLUTION SCHEME (the “Scheme”).  

(a)        The parties hereto (identified in Section 2 below, each a “Party” and together as the “Parties”) acknowledge that their dispute (as further particularized below) (“Dispute”) is within the scope of the Scheme providing for an online dispute resolution process through negotiation, mediation and/or binding arbitration, and hereby agree to settle their Dispute in accordance with the then effective version of the eBRAM Rules for the COVID-19 ODR Scheme and Personal Data Collection Statement for the Scheme (respectively, “eBRAM ODR Rules” and “eBRAM PICS”) that are in force as at the time of the Parties’ submission of the notice for dispute resolution to eBRAM.

(b)        The Parties agree to appoint eBRAM International Online Dispute Resolution Centre Limited (“eBRAM”) to be the service provider to process and facilitate resolution and settlement of their Dispute in accordance with the eBRAM ODR Rules and eBRAM PICS.

(c)        The governing law of (i) this Agreement, (ii) the parties’ negotiation, mediation and/or arbitration process (as the case may be), and (iii) the seat of dispute resolution under the Scheme (whether by way of negotiation, mediatiown and/or arbitration, as the case may be) shall be Hong Kong.  In the event of any disputes, claims or differences for or in connection with this Agreement (whether contractual or non-contractual) arising between the Parties, the Parties shall submit any such disputes, claims or differences to be resolved by the exclusive jurisdiction of the Hong Kong courts.

(d)        The applicable language(s) to be used in resolving the Dispute shall be Cantonese, Mandarin or English.

(e)        The Parties hereby irrevocably agree and confirm that they elect to use the Scheme to resolve this particular Dispute, instead of other forums (whether online or offline) for dispute resolution. This Agreement supersedes and replaces any and all previous dispute resolution agreements the Parties may have made for or in relation to the particular subject matter of this Dispute subject however to clause (f)(a) below.

(f)         Specifically, in the event the Parties elect for binding arbitration under the Scheme for resolution of their Dispute:

a.     Any decision and award of the arbitrator under the Scheme shall be final and binding upon the Parties.  For avoidance of doubt, notwithstanding clause (e) above, nothing in this Agreement prevents either Party from seeking remedies of injunction (including interim/ interlocutory and permanent injunctions), specific performance, orders for preservation of evidence, assets or conduct, or any other applicable equitable relief from any court of competent jurisdiction, and any such requests shall not be deemed or construed as incompatible with the agreement to arbitrate under the Scheme or as a waiver of the right to arbitrate under the Scheme.

b.     As between the Parties, the arbitrator under the Scheme has authority and power to grant interim measures and relief, including but not limited to injunctions, specific performance or any other applicable equitable relief (“Interim Relief”), whether in the form of an award or in another form. Where an Interim Relief is enforceable by a court of competent jurisdiction according to applicable laws, a Party’s request/application for Interim Relief shall be made to the arbitrator under the Scheme first. However, if, according to any applicable laws of the relevant enforcement jurisdiction(s) concerned, the arbitrator is not authorized to grant any such Interim Relief and/or any such Interim Relief would be unenforceable by the court of competent jurisdiction of the relevant enforcement jurisdiction(s) concerned, a Party may then (a) request the arbitrator to transfer the Party’s request/application for Interim Relief to the relevant court or (b) request/apply for Interim Relief from the applicable court and/or law enforcement organs of the relevant jurisdiction(s) directly.

(g)        Unless otherwise agreed between the Parties and/or awarded by the mediator/arbitrator under the Scheme (as the case may be), each Party shall bear its own costs and expenses relating to this Agreement and the use of the Scheme.

(h)        Each Party hereby acknowledges and agrees that eBRAM will only handle disputes involving monetary claims below the total amount of HK$500,000.  For disputes exceeding the amount of HK$500,000, both Parties hereby agree and confirm to waive and abandon the part of monetary claim for their Dispute that is in excess of HK$500,000 when submitting their Dispute for resolution under the Scheme. The Parties understands that eBRAM has the right to decline accepting their case under the Scheme if their claim exceed this maximum monetary limit.

 

2.         MEDIATOR/ARBITRATOR:

The Parties agree to use negotiation / mediation / binding arbitration for the resolution of their Dispute under the Scheme.

The Parties agree that one (1) mediator / arbitrator shall be appointed, and the Parties shall endeavour to agree on the appointment of a mediator / arbitrator for the dispute resolution proceedings under the Scheme.

If the Parties fail to agree on the appointment of the mediator/arbitrator, the Parties acknowledge and agree that eBRAM has the sole and absolute discretion to appoint any such other mediator(s) / arbitrator(s) as appropriate in accordance with the eBRAM ODR Rules, and eBRAM’s decision and appointment shall be final.      

3.         Electronic Transactions

Each Party shall ensure that personal data supplied by that Party to eBRAM and the mediators/arbitrators for processing under the Scheme are true and accurate, and if there are any inaccuracies in any such personal data, that the Party shall promptly notify and request eBRAM to update and correct those inaccuracies.

Unless there is any applicable legal requirement under any applicable laws to the contrary, both Parties agree that any and all documents and instruments in relation to or arising from their use of the Scheme may be presented in the electronic format and executed using electronic signatures by the relevant signatories, which shall have the same legal force and effect as if the documents and instruments were presented and executed in paper, including but not limited to (i) this ODR Agreement and its execution thereof, (ii) the mediated settlement agreement and the execution thereof, (iii) any and all other documents, submissions and communications for or relating to the processing and resolution of this Dispute under the Scheme; and (iv) the arbitral direction, decision and award issued by the arbitrator, and the execution thereof. 

This Agreement shall be executed by the Parties in counterparts, each of which is an original and together forms one and the same legal instrument.

 

4.         PRIVACY AND DATA PROTECTION

The Parties agree that eBRAM shall process any personal data in accordance with the applicable personal data protection laws and regulations and the latest version of eBRAM PICS.

I acknowledge that I have read and fully understand the above document namely, Terms of the ODR Agreement for the COVID-19 Online Dispute Resolution Scheme and I confirm my agreement to all the terms contained therein.

eBRAM Rules for the Covid-19 ODR Scheme

I.          Introductory rules

 

1          Article 1 - Scope of application

 

1.1        These Rules shall apply to Covid-19 Related Disputes below the value of HK$500,000 where the parties, one of which is a resident of Hong Kong SAR, a company registered in Hong Kong SAR under the Companies Ordinance (Cap. 622) or the predecessor Companies Ordinance (Cap.32), or a sole proprietor or partnership registered in Hong Kong SAR under the Business Registration Ordinance (Cap.310) where that sole proprietor or at least one of the partners in that partnership is a resident of Hong Kong SAR, have agreed to resolve any  dispute relating to the dealings between them shall be resolved via the Scheme under these Rules. These Rules do not cover the arbitration of disputes which are not arbitrable under the laws of Hong Kong SAR.

 

1.2        These Rules shall govern the dispute resolution proceedings provided by eBRAM, on the eBRAM Platform for the disputes described in Article 1.1 above, subject to such modifications as the parties may agree and/or eBRAM may accept. Where any of these Rules is in conflict with a provision of the law applicable to the Proceedings from which the parties cannot derogate, that provision of the law applicable shall prevail.

 

1.3        The law applicable to all the Proceedings under these Rules shall be the laws of Hong Kong SAR.

 

 

2              Article 2 - Definitions

 

2.1        For purposes of these Rules:

 

Arbitrator means the Neutral appointed to act as an arbitrator and to conduct the arbitration stage of the Proceedings pursuant to Article 8.1;

 

Claimant means any party initiating proceedings under these Rules;

 

Communication means any communication (including a statement, declaration, demand, notice, response, submission, proposal, notification or request) made by means of information generated, uploaded, conducted and transmitted through the eBRAM Platform;

 

Covid-19 Related Dispute means any commercial, contractual, tortious, property, family or tenancy disputes arising out of or in connection with directly or indirectly the outbreak of the Covid-19 pandemic in any part of the world;

 

eBRAM means eBRAM International Online Dispute Resolution Centre Limited or any other person or body authorised by eBRAM International Online Dispute Resolution Centre Limited to carry out any function under these Rules;

 

eBRAM Platform means the Online Dispute Resolution software developed, adopted and/or revised by eBRAM for the Scheme from time to time;

 

E-communication means any communication (including a statement, declaration, demand, notice, response, submission, proposal, notification or request) made by means of information generated, sent, received, stored, processed, uploaded, conducted and transmitted through or derived from the eBRAM Platform;

 

 

Electronic Address means an information system, or portion thereof, designated by the parties to eBRAM to exchange communications;

 

Hong Kong SAR means Hong Kong Special Administrative Region of the People’s Republic of China

 

Mediator means the Neutral appointed to act as the mediator and to conduct the mediation stage of the Proceedings pursuant to Article 7.1;

 

Neutral means the mediator or the arbitrator appointed to conduct the Proceedings at the relevant time;

 

ODR Agreement means the agreement to be made between the intended Claimant and the intended Respondent substantially similar to the form set out in the Annex to these Rules;

 

Online Dispute Resolution or ODR is a mechanism for resolving disputes through the use of electronic communications and other information and communication technology;

 

Proceedings means the dispute resolution proceedings provided by eBRAM on the eBRAM Platform for any dispute described in Article 1.1 above.

 

Respondent means any party responding to the Claimant’s initiation of Proceedings under these Rules and a party to the ODR Agreement (other than the Claimant);

 

Scheme means the Online Dispute Resolution Scheme funded by the Government of the Hong Kong SAR and operated by eBRAM to handle Covid-19 Related Disputes.

 

2.2          In these Rules, unless the context otherwise requires, the following rules of interpretation shall apply:

 

(a)           each gender includes the others; and

 

(b)           words and expressions in the singular include the plural and vice versa.

 

 

3              Article 3 - Communications

 

3.1        Save as otherwise provided in these Rules, all communications in the course of any Proceedings shall be communicated to eBRAM and uploaded to and transmitted through the eBRAM Platform.

 

3.2        eBRAM shall promptly acknowledge receipt of any Communication by a party or the Neutral at their Electronic Addresses.

 

3.3        eBRAM shall promptly notify a party or the Neutral of the availability of any Communication directed to that party or the Neutral at the eBRAM Platform.

 

3.4        In agreeing to make use of the eBRAM Platform, a party shall be regarded as having  agreed to accept that transmission by electronic means through the eBRAM Platform constitutes valid service of any Communication.

 

3.5        A communication transmitted by electronic means through the eBRAM Platform shall be deemed to have been received when eBRAM notifies the parties of the availability of the Communication on the eBRAM Platform.

 

3.6        eBRAM shall promptly notify all parties and the Neutral of the conclusion of the negotiation stage of Proceedings and the commencement of the mediation stage of Proceedings; the expiry of the mediation stage of Proceedings; and, if relevant, the commencement of the arbitration stage of Proceedings.

 

3.7        For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day a notice is received pursuant to Article 3.5 above. If the last day of such period is an official holiday or a non-business day in Hong Kong SAR, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.

 

3.8        Unless the parties agree otherwise or the Neutral directs otherwise, for the purpose of verifying the authenticity of evidence, all evidence uploaded onto the eBRAM Platform, including documents, audio, photography or videography footage, shall be certified by a solicitor, chartered accountant or a notary public, including the parties' legal representatives in the Proceedings, unless the Neutral directs otherwise.



II.         Commencement of Proceedings

 

4          Article 4 – ODR Agreement

 

4.1       The intended Claimant and the intended Respondent shall first enter into the ODR Agreement and the Claimant shall communicate the ODR Agreement to eBRAM by:

 

(a)           uploading it to the eBRAM Platform; and

 

(b)           any means of communication that provides or allows for a record of its transmission.

 

4.2        The ODR Agreement should, as far as possible, be accompanied by all documents and other evidence relied upon by the Claimant or contain references to them.

 

4.3        eBRAM shall promptly notify the parties that the ODR Agreement is available on the eBRAM Platform. The Proceedings shall be deemed to commence from the date of notification by eBRAM that the ODR Agreement is available on the eBRAM Platform.

 

4.4        The ODR Agreement shall include:

 

(a)           The name and contact details (including Electronic Address) of the Claimant and of the Claimant's representative (if any) authorized to act for the Claimant in the Proceedings;

 

(b)           The name and contact details (including Electronic Address) of the Respondent and of the Respondent's representative (if any) known to the Claimant, and proof of authorization of representation;

 

(c)           The grounds on which the claim is made and brief details of the nature of the dispute;

 

(d)           Any solutions proposed to resolve the dispute;

 

(e)           The parties’ preferred language of Proceedings;

 

(f)            The waiver by the relevant party the part of its claim or counterclaim which exceeds HK$500,000; and

 

(g)           The signature or other means of identification and authentication of the parties and/or the parties’ representatives.

 

4.5        Together with the ODR Agreement, the Claimant and the Respondent shall pay the online registration fees required by the Appendix hereto in force on the date the ODR Agreement is submitted.

 

4.6        Notwithstanding the submission of the ODR Agreement, and the commencement of the Proceedings under the eBRAM Platform, eBRAM shall have the absolute discretion on its own motion or a request of a party or Neutral to terminate any Proceedings on the ground that the same is:

 

(a)   Not a Covid-19 Related Dispute;

(b)   an abuse of process; or

(c)   frivolous, vexatious and scandalous.

 

eBRAM shall not be required to give any reason to the parties in the exercise of such discretion and the decision of eBRAM shall be final and conclusive.  The online registration fee shall not be refundable to the parties.

 

 


5          Article 5 - Response

 

5.1        The Respondent shall, within three (3) calendar days of being notified of the availability of the ODR Agreement on the eBRAM Platform pursuant to Article 4.3 above, communicate the response to eBRAM by:

 

(a)           uploading it to the eBRAM Platform; and

 

(b)           any means of communication that provides or allows for a record of its transmission.

 

5.2        The response should, as far as possible, be accompanied by all documents and other evidence relied upon by the Respondent or contain references to them.

 

5.3        The response shall include:

 

(a)           The name and contact details (including Electronic Address) of the Respondent and the Respondent's representative (if any) authorized to act for the Respondent in the Proceedings;

 

(b)           A response to the grounds on which the claim is made;

 

(c)           Any solutions proposed to resolve the dispute;

 

(d)           The signature or other means of identification and authentication of the Respondent and/or the Respondent's representative; and

 

(e)           Notice of any counterclaim containing the grounds on which the counterclaim is made.

 

5.4        The Respondent may provide, at the time it submits its response, any other relevant information, including information in support of its response, and also information in relation to the pursuit of other legal remedies.

 

5.5        A Claimant to whom a notice of counterclaim is addressed shall respond to the counterclaim within the response period set out in Article 5.1 and in the same manner set out in Articles 5.1, 5.2, 5.3 and 5.4, where applicable, as if the Claimant were the Respondent to whom a commencement notice had been notified.

 

 

III.           Stages of Proceedings

 

6          Article 6 - Negotiation Stage

 

6.1        If the response does not include a counterclaim, the negotiation stage shall commence upon communication of the response to eBRAM and notification thereof to the Claimant. If the response does include a counterclaim, the negotiation stage shall commence upon the Claimant's communication of the response to that counterclaim and notification thereof to the Respondent, or after the expiration of the response period set out in Article 5.5, whichever is earlier.

 

6.2        The Negotiation Stage of Proceedings shall comprise negotiation between the parties via the eBRAM Platform or otherwise as the parties may agree.

 

6.3        If:

 

(a)           the Respondent does not communicate a response to eBRAM in accordance with Article 5, or

 

(b)           one or both parties request that the Proceedings move to the mediation stage of the Proceedings; or

 

(c)           a party elects not to engage in the negotiation stage of the Proceedings,

 

                        the mediation stage of the Proceedings shall immediately commence.

 

6.4        If the parties have not settled their dispute by negotiation within three (3) calendar days of the commencement of the negotiation stage of the Proceedings or within any other period that they may agree, the mediation stage of the Proceedings shall immediately commence.

 

6.5        The parties may agree to a one-time extension of the deadline for reaching settlement during the negotiation stage of the Proceedings. No extension shall be more than three (3) calendar days.




 

7          Article 7 - Mediation Stage

 

7.1        Upon commencement of the mediation stage of the Proceedings, eBRAM shall promptly generate a list of five (5) names from whom the parties may agree to appoint  a Neutral to conduct the Proceedings as a mediator. The parties shall notify eBRAM of their agreed choice of the Neutral through the eBRAM Platform.  eBRAM shall appoint the Neutral as the Mediator and inform the parties of the deadline for the expiry of the mediation stage. Should the parties fail to agree on such appointment within three (3) calendar days, eBRAM shall appoint the Neutral in accordance with Article 11 from outside of the list, and notify the parties of:

 

(a)           the appointment of the Mediator, and

 

(b)           the deadline for the expiry of the mediation stage of the Proceedings under Article 7.3.

 

7.2        Following the appointment, the Mediator shall communicate with the parties through the eBRAM Platform to attempt to reach a settlement agreement. Once a settlement agreement is reached, the mediated settlement agreement shall be signed and executed electronically by the parties on the eBRAM Platform. Should any party require an original signed copy of the mediated settlement agreement certified by eBRAM, this will be couriered to that party upon receipt by eBRAM of an online request communicated via the eBRAM Platform.

 

7.3        If the parties have not settled their dispute by mediation within three (3) calendar days of being notified of the appointment of the Mediator under Article 7.1, the Proceedings shall move to the final (arbitration) stage of Proceedings pursuant to Article 8 PROVIDED THAT if the subject matter of the dispute is not arbitrable according to the laws of the seat of the Proceedings, the parties may elect to terminate the Proceedings, and if the parties fail to agree on the arbitrability of the dispute, the Proceedings shall nonetheless proceed to the arbitration stage, and the issue shall be determined by the Neutral appointed to conduct the arbitration pursuant to Article 8.1 below.

 

 

 

 

8      Article 8 - Arbitration Stage

 

8.1        Upon the case moving to the arbitration stage of the Proceedings, eBRAM shall generate a list of five (5) names for the parties to choose from to act as arbitrator for the further conduct of the Proceedings. The parties shall notify eBRAM of their agreed choice of the Neutral through the eBRAM Platform.  eBRAM shall appoint the Neutral as the Arbitrator and inform the parties of such appointment. Should the parties fail to agree on such appointment within three (3) calendar days of the commencement of the arbitration stage of the Proceedings, eBRAM shall appoint a Neutral to act as Arbitrator to conduct the Proceedings at the arbitration stage in accordance with Article 11 from outside of that list.

 

8.2        Upon appointment of the Arbitrator under Article 8.1, the Arbitrator shall proceed to communicate a deadline to the parties by which all Communications and submissions shall be made. Such deadline shall be no later than one (1) calendar month from the appointment of the Arbitrator.

 

8.3        Each party shall have the burden of proving the facts relied on to support its claim or defence.

 

8.4        The Neutral shall resolve the dispute based on the information submitted by the parties and shall render an award. The Neutral shall have jurisdiction to decide on the tribunal’s jurisdiction and on the arbitrability of the dispute. Electronic copy of the award shall be uploaded to the eBRAM Platform.

 

8.5        The award shall be made in writing and signed by the Neutral and shall indicate the date on which it was made and the seat of arbitration.

 

8.6        The requirement in Article 8.5 for:

 

(a)           the award to be in writing shall be met where the information contained in the award is accessible so as to be usable for subsequent reference; and

 

(b)           the award to be signed shall be met where data can be used to identify the Neutral and to indicate his or her approval of the information contained in the award.

 

8.7        The award shall state brief reasons upon which the award is based.

 

8.8        The award shall be rendered within seven (7) calendar days from the filing of the last submission.

 

8.9        The award shall be final and binding on the parties. The parties shall carry out the award without delay.

 

8.10      An award may be made public with the consent of all parties or, where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or, in relation to legal proceedings before a court or other competent authority.

 

8.11      Should any party require an original signed paper copy of arbitral award, this will be couriered to the party upon receipt by eBRAM of an online request communicated via the eBRAM Platform.

 

8.12      In all cases the Neutral shall make an award in accordance with the terms of the contract in dispute (if any), taking into account any relevant facts, circumstances and the usage of trade or industrial practice applicable to the dispute, if any.

 

8.13      The Neutral shall apply the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation, the Neutral shall apply the law which it determines to be appropriate.

 

8.14      The Neutral shall decide as amiable compositeur or ex aequo et bono, only if the parties have expressly authorized the Neutral to do so.

 

9          Article 9 - Correction of award

 

9.1        Within five (5) calendar days after the uploading of the award, a party, with notice to the other party, may, through the eBRAM Platform, request the Neutral to correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature. If the Neutral considers that the request is justified, he or she shall make the correction including a brief statement of reasons therefor, within two (2) calendar days of receipt of the request. Such corrections shall be uploaded on the eBRAM Platform and shall form part of the award.

 

9.2        The Neutral may, within five (5) calendar days after uploading the award to the eBRAM Platform, make such corrections on its own initiative.



10        Article 10 - Settlement

 

If settlement is reached at any stage of the Proceedings, the terms of such settlement shall be uploaded to the eBRAM Platform, at which point the Proceedings shall automatically terminate. The Neutral may, if considered necessary, draw up a mediated settlement agreement for signature by the parties or an award by consent (as the case may be) for the purpose of enforcement.



IV.        Appointment, Powers, and Functions of the Neutral

 

11        Article 11 - Appointment of Neutral

 

11.1      For each stage of the Proceedings, the number of Neutral to be appointed shall be one.

 

11.2      eBRAM shall appoint the Neutral promptly upon commencement of each of the mediation stage and arbitration stage of the Proceedings. Upon appointment of the Neutral, eBRAM shall promptly notify the parties of the name of the Neutral and any other relevant or identifying information in relation to that Neutral in addition to the matters referred to in Article 7.1 above.

 

11.3      In appointing a Neutral, eBRAM shall consider the need for the Neutral to be independent and impartial of the parties and representatives.

 

11.4      The Neutral, by accepting appointment, confirms that he or she can devote the time necessary to conduct the Proceedings diligently, efficiently and in accordance with the time limits in these Rules.

 

11.5      The Neutral shall, at the time of accepting his or her appointment, make a declaration of his or her impartiality and independence substantially similar to the form set out in the Annex hereto.

 

11.6      The Neutral, from the time of his or her appointment and throughout the Proceedings shall, without delay, disclose to eBRAM any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. eBRAM shall promptly communicate such information to the parties.


 

     11.7      Either party may object to the Neutral's appointment within two (2) calendar days:

 

(a)           of the notification of the appointment without giving reasons therefor, unless such appointment was made in accordance with the parties’ agreement on the choice of Neutral, in which case the parties may not raise any objection to the Neutral’s appointment; or

 

(b)           of a fact or matter coming to its attention that is likely to give rise to justifiable doubts as to the impartiality or independence of the Neutral, setting out the fact or matter giving rise to such doubts at any time during the Proceedings.

 

11.8      If no challenges are made pursuant to Article 11.7, the appointment shall become final.

 

11.9      Where a party objects to the appointment of a Neutral under Article 11.7(a), that Neutral shall be automatically disqualified and another appointed in his or her place by eBRAM. Each party shall have a maximum of three (3) challenges to the appointment of a Neutral pursuant to Article 11.7(a), following which the appointment of a Neutral by eBRAM shall be final, subject to Article 11.7(b).

 

11.10    Where a party objects to the appointment of a Neutral under Article 11.7(b), eBRAM shall make a determination within three (3) calendar days on whether a Neutral shall be replaced. A determination by eBRAM under this Article shall be final.

 

11.11    Either party may object, within three (3) calendar days of the final appointment of the Neutral, to the provision by eBRAM to the Neutral of information generated during the negotiation stage of the Proceedings. Following the expiration of this three (3) day period, and in the absence of any objections, eBRAM shall convey a complete set of existing information on the eBRAM Platform to the Neutral.

 

 

12           Article 12 - Resignation or Replacement of Neutral

 

If the Neutral resigns or otherwise has to be replaced during the course of the Proceedings, eBRAM shall appoint another Neutral to replace him or her pursuant to Article 11. The Proceedings shall resume at the stage where the replaced Neutral ceased to perform his or her functions.

 

 

13           Article 13 - Power of the Neutral

 

13.1      Subject to the Rules, the Neutral may conduct the Proceedings in such manner as he or she considers appropriate.

 

13.2      The Neutral, in exercising his or her functions under the Rules, shall conduct the Proceedings so as to avoid unnecessary delay and expense and to provide a fair, efficient and cost-effective process for resolving the dispute. In doing so, the Neutral shall remain at all times wholly independent and impartial and shall treat both parties equally.

 

13.3      Subject to any objections under Article 11.11, the Neutral shall conduct the Proceedings on the basis of all Communications made during the Proceedings, the relevance of which shall be determined by the Neutral. The Proceedings shall be conducted on the basis of these materials only, unless the Neutral decides otherwise.

 

13.4      Subject to Article 13.2, at any time during the Proceedings the Neutral may request or allow the parties (upon such terms as to costs and otherwise as the Neutral shall determine) to provide additional information, produce documents, exhibits or other evidence within such period of time as the Neutral shall determine.

 

13.5      The Neutral shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence or validity of any agreement to refer the dispute to eBRAM.

 

13.6      The Neutral, after making such inquiries as he or she may deem necessary, may, in his or her discretion, extend any deadlines under these Rules.

 

 

V. General Provisions

 

14         Article 14 - Deadlines

 

eBRAM, or, if relevant, the Neutral, shall notify parties of all relevant deadlines during the course of Proceedings.

 

15           Article 15 - Seat of Arbitration

 

If the parties have not determined the seat of arbitration, the seat of arbitration shall be Hong Kong SAR, unless eBRAM otherwise selects having due regard to the circumstances of the case.

 

16           Article 16 - Language of Proceedings

 

The Proceedings shall be conducted in Cantonese, Mandarin or English. Taking into account the parties’ preferred language of Proceedings, eBRAM shall determine the language or languages to be used in the Proceedings. In the event that a party indicates in a notice or response that it wishes to proceed in another language in the Proceedings, eBRAM shall identify available languages that the parties can select for the Proceedings, and the Proceedings shall be conducted in the language or languages that the parties select.

 

 

17           Article 17 - Representation

 

A party may be represented or assisted by a person or persons chosen by that party. The names and contact details (including Electronic Address) of such persons and their authority to act shall be communicated to the other party and eBRAM through the eBRAM Platform.

 

18           Article 18 - Exclusion of liability

 

Save for intentional wrongdoing, the parties waive, to the fullest extent permitted under the applicable law, any claim against eBRAM and the Neutral based on any act or omission in connection with the Proceedings under these Rules.

 

19           Article 19 - Allocation of Costs at the Arbitration Stage

 

19.1      The costs of the arbitration shall in principle be borne by the unsuccessful party or parties. However, the Neutral may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.

 

19.2      The Neutral shall, in the final award, determine any amount that a party may have to pay to another party as a result of the decision on allocation of costs.

 

 

20        Article 20 - Definition of Costs

 

20.1      The term 'costs' includes only:

 

(a)           the reasonable costs of expert advice and of other assistance required by the Neutral during the arbitration stage of the Proceedings; and

 

(b)                 legal and other costs incurred by the parties during the arbitration stage of the proceedings to the extent the Neutral determines reasonable.

 

 

 



 

ANNEX

Forms

 

A.    Model ODR Agreement

ODR Agreement for COVID-19 Online Dispute Resolution Scheme

新型冠狀病毒網上爭議解決計劃協議

 

IMPORTANT NOTICE: THIS IS A LEGAL DOCUMENT, PLEASE SEEK LEGAL ADVICE BEFORE SIGNING FOR PROTECTION OF YOUR INTERESTS 重要通知:此乃法律文件,為保障您的權益,請於簽署前諮詢法律意見。

 

1.     AGREEMENT TO RESOLVE DISPUTE UNDER THE COVID-19 ONLINE DISPUTE RESOLUTION SCHEME (the “Scheme”)  

Each of the parties hereto acknowledges and agrees that he has read and fully understands the following documents and confirms that he agrees to all the terms contained therein:

(i)   Terms and Conditions of Services for COVID-19 Online Dispute Resolution Scheme

(ii)  Personal Information Collection Statement for eBRAM’s COVID-19 Online Dispute Resolution Scheme

(iii)  Terms of the ODR Agreement for the COVID-19 Online Dispute Resolution Scheme

(iv) eBRAM Rules for the Covid-19 ODR Scheme

which are published on the website www.ebram.org, and form part of this ODR Agreement.

 

根據新型冠狀病毒網上爭議解決計劃(「該計劃」)解決爭議

甲乙雙方分別確認和同意已詳細閲讀及完全明白以下文件之内容及同意所載之所有條文:-

            (i)    新型冠狀病毒網上爭議解決計劃服務條款及條件

           (ii)    eBRAM新型冠狀病毒網上爭議解決計劃個人資料收集聲明

           (iii)    網上爭議解決協議條款

           (iv)    eBRAM 新型冠狀病毒網上爭議解決計劃規則

          上述文件已經上載於www.ebram.org, 並成爲本協議之有效條款。

 

2.     DETAILS OF PARTIES當事方詳情:

PARTY A甲方:

PARTY B乙方:

Name 名稱:

 

Name 名稱:

 

 

Address 地址:

 

Address 地址:

 

 

 

 

 

 

 

Tel. No.電話號碼:

 

Tel. No. 電話號碼:

 

 

E-mail 電郵:

 

E-mail 電郵:

 

 

 

 

 

 

                                                                                                        

3.         DISPUTE: (Provide brief particulars of (i) nature, circumstances and location of Dispute, (ii) issues for settlement/determination, and (iii) amount at issue.) Enclose a copy of the contract/supporting documents. 爭議:(提供簡要說明:(i)爭議性質、情況及所在地、(ii)需解決的問題及(iii)爭議金額。)附上合約/有關文件之副本。

 ____________________________________________________________________________________

 ____________________________________________________________________________________

4.         AMOUNT IN DISPUTE爭議金額  HK$ 港幣  ___________________________

 

5.         LANGUAGE語言:  English 英語 / Cantonese粵語 / Mandarin 普通話 (delete as appropriate請刪除如不適用)                    

 

 

SIGNED by / for or on behalf of PARTY A:

甲方或甲方代表簽署:

SIGNED by / for or on behalf of PARTY B:

乙方或乙方代表簽署

 

Signature簽署: 

 

 

Signature簽署:    

 

Date 日期: 

 

 

Date 日期: 

 

Name and Title/Capacity

名稱和身份:

 

Name and Title/Capacity

名稱和身份:

 

Tel. No.電話號碼:

 

Tel. No.電話號碼:

 

E-mail 電郵:

 

E-mail 電郵:

 

 

 

 

B.    Model Statement of Independence pursuant to Article 11.5 of these Rules

 

I am impartial and independent of each of the parties and intend to remain so. To the best of my knowledge, there are no circumstances, past or present, likely to give rise to justifiable doubts as to my impartiality or independence. I shall promptly notify the parties and eBRAM, any such circumstances that may subsequently come to my attention during these proceedings.

 

 

 

APPENDIX

 

Online Registration Fees: HK$400 being HK$200 for each party (i.e. HK$200 x 2)         

 

 

 

I acknowledge that I have read and fully understand the above document namely, eBRAM Rules for the Covid-19 ODR Scheme and I confirm my agreement to all the terms contained therein.