Event Solutions – Terms & Conditions of Hire
THIS AGREEMENT IS MADE BETWEEN:
(1) IML Asia Limited as (“Owner”);
(2) The Party whose name and address appears on the attached Order Form as the Hirer to which these Terms and Conditions relate (“Hirer”)
IT IS HEREBY AGREED AS FOLLOWS:
The Owner agrees to provide for hire and provide the equipment and services mentioned in the Order Form and the Hirer agrees to hire the equipment and services set out in the attached Order Form (“Audience Response Equipment”) on the terms and conditions set out herein. For the purposes of this Agreement, “Dry Hire” shall mean the supply of the Audience Response Equipment only, with no additional services to be provided by the Owner; “Wet Hire” shall mean the supply of the Audience Response Equipment, together with the supply of additional services, as detailed in the Order Form.
2. Basis of Charging
2.1 All charges are payable in accordance with the payment terms set out on the Order Form. The Hirer will pay the invoice within 30 days of the date of the invoice or otherwise provided in the Order Form.
2.2 The Hirer will be responsible for payment of all subsistence, accommodation, parking, travel and other expenses incurred by the Owner in providing the services.
2.3 If the Hirer fails to pay an amount due under this agreement, it must pay, on request from the Owner, interest on that amount at the rate of 3% per annum above the rate quoted by to HSBC Bank on the due date as being the bank’s bill rate expressed as a percentage per annum and a yield to maturity for bills of exchange having a tenure of 90 days from the due date until the date of payment, such interest to be calculated daily and compounded monthly.
2.4 If the Hirer has not paid an invoice within the due date for payment the Owner has the right to suspend any further equipment hire or services until the amount overdue has been paid in full.
This Agreement commences on signature of the Order Form by the parties. It will be terminated when all parties have discharged their contractual obligations.
4. Responsibilities of Person Signing
The person signing the contract and any supplementary documentation on behalf of the Hirer warrants that they have the authority of the Hirer to enter into this Agreement on the Hirer’s behalf. The said person hereby agrees to fully indemnify indemnifies the Owner against all losses and costs that may be incurred by the Owner if this is not so.
The Hirer shall at all times and in all respects insure on demand of the Owner against and from, any and every expense, liability, loss, claim or proceeding whatsoever in respect of any personal injury whatsoever and in respect of damage to any property whatsoever (including the Audience Response Equipment) arising out of or in connection with or consequent upon the hire, delivery, use, misuse, non-use, collection or return of the Audience Response Equipment by the Hirer or any part thereof.
6.1 Regardless of whether the system is operated by the Hirer or the Owner’s appointed personnel, the Owner shall not be liable for any indirect or consequential expense, liability, loss, damage, claim or proceeding, (whether of a economic nature or not) whatsoever caused by, or arising out of, the late delivery, non-delivery, unsuitability, or repossession of the Audience Response Equipment, or any part thereof or any breakdown, or stoppage of the same.
6.2 Without prejudice to the foregoing, the Owners total liability (if any) howsoever arising shall be limited to the charges received by it hereunder.
7. Loss of or Damage to Audience Response Equipment
7.1 The Hirer shall at all times during the term of this Agreement, have a duty of care to the Audience Response Equipment with at least the same standard of care as it does to its own assets. Such care shall include, without limitation, provision of a safe and secure environment for, where appropriate, the transportation, storage and use of the Audience Response Equipment.
7.2 In the event that the Audience Response Equipment is lost or damaged as a result of the Hirer not complying with clause 7.1, or otherwise due to the Hirer’s negligence or any negligent act or omission by the Hirer’s employees, contractors, suppliers or any third parties under its control, the Hirer shall pay to the Owner, on demand, a sum equivalent to the standard list price for purchase of the Audience Response Equipment so lost or damaged.
8. Carriage Charges
Unless specifically stated in the Order Form, hire charges do not include carriage and any expenses incurred by the Owner in delivering or recovering the Audience Response Equipment. The Hirer will pay all such charges.
9. Handling Fee
The Owner will charge a handling fee on all transportation, Audio Visual equipment, excess baggage and other costs incurred whilst undertaking the contractual obligations between Hirer and Owner.
10.1 Cancellation of this Agreement by the Hirer for whatever reason will make it liable to pay immediately on demand all Charges due to the Owner as follows:
More than 60 days from event – 10%; Less than 60 days from event – 25%; Less than 30 days from event – 50%; Less than 7 days from event – 100%. Cancellation charges calculated above apply to equipment and crew only. If other work has already commenced, in which case the charges for those services will also become due if cancelled. Reduction in handsets / equipment, after confirmation, will also result in the above charges being applied.
10.2 In the event that the Hirer wishes to assert that the Owner did not perform its obligations as set out in this agreement, it shall do so within 10 working days of completion of the term of this agreement.
11. Return of equipment
In respect of Dry Hire and Wet Hire where the Hirer is responsible for arranging transportation of the Audience Response Equipment, the Hirer is responsible for returning the equipment prior to 17:30 on the expiry date of this Agreement unless otherwise arranged. Late returns will be charged at the then current daily hire rate.
12. Electrical Equipment
12.1 In respect of Dry Hire, the Hirer acknowledges that the Audience Response Equipment comprises electrical equipment and should normally be used with plugs and/or sockets as fitted, but if temporarily replaced with other suitable plugs or sockets, this must be carried out by a competent person who must also reinstate to the original condition and under no circumstances should electrical Audience Response Equipment be used without it being correctly earthed unless it is of double insulated construction. In respect of Wet Hire, the Hirer must, under no circumstances, allow anyone but the Owner’s authorised representatives to have access to the Audience Response Equipment.
12.2 The Owner shall not be liable for any liability whatsoever arising from any failure of the Hirer to comply with this clause.
13.1 Risk in the Audience Response Equipment transfers to the Hirer where he takes receipt of it either for Wet or Dry Hire and, in such circumstances, continues until the Hirer confirms receipt of return of all Audience Response Equipment. The Hirer agrees that he will not sell or otherwise part with control of the Audience Response Equipment.
13.2 In respect of Dry Hire, the Hirer undertakes to ensure that no one uses the Audience Response Equipment who is not properly instructed and shall not allow the Audience Response Equipment to be misused.
13.3 The Hirer hereby acknowledges that it is responsible for satisfying itself of the suitability and fitness for its own purpose(s) of the Audience Response Equipment and that the Owner shall not be liable for any failure of the Audience Response Equipment to meet the requirements of the Hirer save as explicitly set out herein.
14. Ownership of Software
14.1 Owner owns all proprietary and intellectual property rights in the Audience Response Equipment, the software embedded therein and any material arising from the use or manipulation of the software (including but not limited to copyrights, patents, trademarks and trade secrets).
14.2 The Hirer may not copy or keep any part of the Audience Response Equipment and the elements of the software.
14.3 The Hirer undertakes not to translate, decompile or reverse-engineer any part of the software or allow any third party to carry out such activities unless prior agreement is received in writing from the Owner.
14.4 The Hirer may only use the software provided by Owner on the computers supplied or authorised as compatible by the Owner.
15. Ownership of Data
All intellectual property rights in the data collated, resulting from, or produced by use of the Audience Response Equipment shall vest in the Hirer on receipt of payment in full therefore by the Owner. All pre-existing patents, trademarks, copyright and all other intellectual property rights shall remain with the Owner and/or its licensor.
This Agreement constitutes the entire understanding between the parties concerning the subject matter of this Agreement. No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by both parties. Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
Both parties shall comply with their obligations pursuant to the Privacy Ordinance.
18.1 Unless otherwise specified, any reference to an amount payable or consideration to be provided for a supply to be made by Owner under or in connection with this Agreement is a reference to that amount or consideration having been determined without provision for any tax payable by Owner in respect of that supply (‘Tax Exclusive Amount’).
18.2 If any supply made by a party to this Agreement under or in connection with this Agreement is a taxable supply, the Tax Exclusive Amount for that supply must be increased by an amount equal to any tax which a party is or becomes liable to pay in respect of the supply so that that party retains, after deducting the tax, the Tax Exclusive Amount.
18.3 Owner must provide to Client an invoice for each taxable supply it makes under or in connection with this Agreement.
18.4 Hirer must pay and indemnifies Owner against any tax (other than income tax), duty or charge payable arising out of the provision of the Services or otherwise relating to this Agreement or any transaction contemplated by this Agreement
19. Governing Law and Jurisdiction
The law of Hong Kong SAR shall govern the rights and obligations of the parties to this Agreement; the construction of the same; and, so far as possible, all other matters arising out of or connected with, the making, execution and termination of the same and both parties hereby submit to the exclusive jurisdiction of the Courts of Hong Kong SAR.
Terms & Conditions of Purchase
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE ORDERING ANY HARDWARE:
These terms and conditions (Terms and Conditions) form a legal agreement between you (Purchaser or you) and IML Asia Ltd of Room 1102, 11/F Leighton Centre, 77 Leighton Road, Causeway Bay, Hong Kong (Seller or we) for the IML CLICK handset product which may be used in conjunction with the Seller’s IML VIEWPOINT PREMIUM and the IML VIEWPOINT EXPRESS software.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ORDERING ANY HARDWARE. BY SIGNING THE QUOTATION Provided to you by the Seller YOU AGREE TO THESE TERMS AND CONDITIONS WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU WILL NOT BE ABLE TO ORDER THE HARDWARE.
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE ORDERING ANY HARDWARE:
These terms and conditions (Terms and Conditions) form a legal agreement between you (Purchaser or you) and IML Asia Ltd of Room 1102, 11/F Leighton Centre, 77 Leighton Road, Causeway Bay, Hong Kong (Seller or we) for the IML CLICK handset product which may be used in conjunction with the Seller’s IML VIEWPOINT PREMIUM and the IML VIEWPOINT EXPRESS software.
In these Terms and Conditions, unless the context otherwise requires, the following expressions shall have the meaning shown against them:
“Equipment”: the Purchaser’s computing hardware running under the Operating System, in respect of which the licence for the Software is granted;
“Hardware”: the hardware including IML CLICK handsets and USB receivers, to be used in conjunction with the Equipment;
“Operating System”: the operating system for the Equipment as set out in the Software End User Licence Agreement;
“Order”: an agreement to purchase (whether online or offline) Hardware and, if required, the IML VIEWPOINT PREMIUM software made by the Purchaser and accepted by the Seller;
“Payment Terms”: the terms of payment of the Purchase Price;
“Purchase Price”: the price payable for the purchase of the Hardware and, if applicable, the licence fee for the IML VIEWPOINT PREMIUM software;
“Software”: the IML VIEWPOINT PREMIUM software and the IML VIEWPOINT EXPRESS software (as applicable) which will be implemented on the Equipment, as further described below;
“Software End User Licence Agreement”: the end user licence agreement for the Software as entered into separately between the Purchaser and the Seller.
Purchase of Hardware and Software
The Seller agrees to sell and the Purchaser agrees to buy the Hardware and, if required, the IML VIEWPOINT PREMIUM software. The sale and purchase of the Hardware shall be governed by these Terms and Conditions.
The Seller and the Purchaser acknowledge and agree that the licence by the Purchaser of the Software is subject to a Software End User Licence Agreement entered into at the time the Purchaser downloads the Software from the Seller’s website.
In the event of any inconsistency between these Terms and Conditions and the Software End User Licence Agreement in respect of the Software the terms of the Software End User Licence Agreement will apply.
Purchase Price and Payment Terms
The Purchaser will pay the Purchase Price as set out in the Order in accordance with the Payment Terms.
The Payment Terms stipulate that an Order will not be processed or completed until the Seller has received the Purchaser Price in full in cleared funds.
Upon receipt in full by the Seller of the Purchase Price, title to the Hardware shall vest in the Purchaser and the Seller shall dispatch the Hardware to the Purchaser.
If the Purchaser is also purchasing the IML VIEWPOINT PREMIUM software, the Seller shall deliver a licence code with the Hardware to enable the Purchaser to download the IML VIEWPOINT PREMIUM software from the Seller’s website.
Risk in the Hardware shall transfer to the Purchaser on despatch of it.
Obligations of the Purchaser
The Purchaser is responsible for satisfying itself of the suitability and fitness for purpose of the Hardware and the installation, management and use of the Software and the results obtained there from, as well as the combination of the Software with any other software or equipment.
Should the Purchaser wish to dispose of Hardware due to it reaching the end of its life, or if it is no longer required, then the Purchaser must ensure that it is disposed of in a responsible way in accordance with the relevant law and regulations in force.
Before disposing of any computer or other media, the Purchaser shall ensure that any Software contained therein in has been permanently erased.
The Purchaser shall provide the Equipment and the Operating System as specified and shall only operate the Hardware together with the Equipment and the Operating System. The Seller shall have no liability howsoever arising from a failure of the Hardware or the Software in the event that the Purchaser does not comply with this obligation.
The Purchaser shall provide suitably technically skilled personnel to attend the training supplied by the Seller, if such training is requested by the Purchaser. Any training provided by the Seller will be charged to the Purchaser at the Seller’s prevailing training rates.
The Seller shall provide free web based technical support in respect of the Hardware for period of 12 months from the date of purchase. The Seller reserves the right to vary the type or period of technical support or to impose a fee for providing the technical support at any time.
Intellectual Property Rights
All intellectual property rights in the data collected, resulting from, or produced by the use of the Software and the
Hardware shall vest in the Purchaser on receipt by the Seller of payment in full of the Purchase Price.
All pre-existing patents, trademarks, copyright and all other intellectual property rights shall remain with the Seller or its licensor.
These Terms and Conditions commence when you sign and return to the Seller the Quotation.
Your rights under these Terms and Conditions will terminate on notice from the Seller if you fail to comply with any term(s) of these Terms and Conditions.
Upon termination of these Terms and Conditions, you shall cease all use of the Software and Hardware, and shall destroy the Hardware in accordance with these Terms and Conditions.
Right of Return
The Purchaser has the right to return the Hardware and the IML VIEWPOINT PREMIUM software (if applicable) to the Seller within 7 working days of delivery of the Hardware for any reason (which the Purchaser shall specify to the Seller) for a full refund (applicable for the Hardware and the IML VIEWPOINT PREMIUM software) or replacement (applicable for the Hardware only) provided that the Hardware is returned in the same condition in which it is delivered.
Warranty and Liability
The Seller warrants that the Hardware will perform substantially in accordance with the description on this website for a period of 12 months from the date acceptance of these Terms and Conditions.
Except as provided for in these Terms and Conditions, all warranties, representations, guarantees, conditions and terms, other than those expressly set out in these Terms and Conditions whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.
Nothing in these Terms and Conditions shall be construed as excluding the liability of one party to the other for:
(i) death or personal injury to the extent that it results from its negligence;
(ii) any breach of any obligations implied by section 14 of the Sale of Goods Ordinance (Cap. 26); or
(iii) or fraud,
save to the extent it is lawful to do so.
The Seller shall not be liable for any indirect or consequential expenses, liability, loss, damage, claim or proceedings, whatsoever caused by, or arising out of, the late delivery, non-delivery, unsuitability, or repossession of the Hardware or the Software, or any part thereof or any breakdown, or stoppage of the same.
The Seller’s total liability under these Terms and Conditions, whether such liability arises under any express or implied term of these Terms and Conditions, in tort, for misrepresentation, for breach of contract, a contribution or any other duty imposed by law or in any other way shall in be limited to the higher of the charges received by it under these Terms and Conditions OR the resupply of the Hardware, where applicable.
The Purchaser confirms and agrees that all confidential information (obtained whether in preparation for entering into these Terms and Conditions or otherwise in the course of performance of its obligations under these Terms and Conditions, will be treated by you as secret and confidential and will not be disclosed by them to a third party except:
(i) to employees, agents and sub-contractors instructed by it in connection with the proper performance of its obligations under these Terms and Conditions and who require such information for the performance of their duties; or
(ii) to its professional advisers (including for the avoidance of doubt its auditors); or
(iii) as may be required by law or by a competent regulatory or government authority; or
(iv) with the prior written consent of the Seller; or
(v) insofar as the information shall have entered the public domain, other than as a result of a breach of these Terms and Conditions by the Purchaser.
Transfer of rights and obligations
These Terms and Conditions are binding on you and us, and on our respective successors and assigns.
You may not transfer, assign, charge or otherwise dispose of any of your rights or obligations arising under it, without our prior written consent.
We may transfer, assign, charge, sub-contract any of our rights or obligations arising under it, at any time during the term of these Terms and Conditions.
If any of the terms of these Terms and Conditions are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
Should it be held by a court of competent jurisdiction that some term of these Terms and Conditions is invalid or unenforceable then the said invalidity or unenforceability of such term shall not invalidate the rest of these Terms and Conditions which shall continue in full force and effect.
These Terms and Conditions and the Order constitute the entire understanding between the parties concerning the purchase of the Hardware.
These Terms and Conditions, the Order and the Software End User Licence Agreement constitute the entire understanding between the parties concerning the purchase of the Software. Notwithstanding the aforesaid, in the event of any inconsistency between these Terms and Conditions and the Software End User Licence Agreement in respect of the Software the terms of the Software End User Licence Agreement will apply.
No waiver or amendment of any provision of these Terms and Conditions or the Order shall be effective unless made by a written instrument signed by both parties. Each term of these Terms and Conditions and the Order shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of these Terms and Conditions and the remainder of the provision in question shall continue in full force and effect.
Any notice to be served under these Terms and Conditions shall be in writing and may be served by sending it to the relevant party at its address or fax number as last notified to the party giving the notice, and any notice so served shall be deemed to have been served, if sent by first class post, upon the expiry of 48 hours after posting and, if sent by fax, on the date on which it is transmitted.
Neither party shall be responsible for delays or failure to perform any of its obligations under these Terms and Conditions (except the obligation to pay) resulting from acts beyond the reasonable control of such party. Such acts shall include, but not limited to, acts of God, strikes, lockout, riots, acts of war, epidemics, governmental regulations superimposed after the fact, communication line failures, power failure, earthquakes or other disasters, or any failure or breakdown of any system, computer or otherwise.
The waiver by either party of a breach or default of any of the provisions of these Terms and Conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of any party to avail itself of any right, power or privilege that it has or may have under these Terms and Conditions operate as a waiver of any breach or default by any other party.
Law and Jurisdiction
These Terms and Conditions, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Hong Kong laws and submitted to the non-exclusive jurisdiction of the Hong Kong courts. Your use of the Software may also be subject to other local, state, national, or international laws. Downloading the Software from jurisdictions where the functionality and/or contents of such Software are illegal is prohibited. If you choose to download the Software from such a jurisdiction, you do so at your own risk and are solely responsible for compliance with all the laws of your jurisdiction.
Market Research & Enterprise – Terms & Conditions
In this Agreement:
- Agreement means these General Terms and any Special Terms;
- Associate means (in relation to each Party) any subsidiary or holding company from time to time of a Party, or any subsidiary from time to time of a Party’s holding company ;
- Business Day means a day (excluding Saturday, Sundays, public holidays and days on which a tropical cyclone warning no.8 or above or a “black” rainstorm warning signal is hoisted in Hong Kong at any time between the hours of 9.00am and 5.00pm on weekdays and 9.00am and 12.00 noon on Saturdays), on which licenced banks in Hong Kong are open for general business.
- Data Protection Legislation means:
in Hong Kong, the Personal Data (Privacy) Ordinance (Cap 486) with regard to the storing and processing of personal data; and/or
outside of Hong Kong, any similar or equivalent laws, regulations or rules relating to information or data about individuals.
- Fees means the amounts set out in the Specific Terms.
- Intellectual Property Rights means all intellectual property rights on a world-wide basis whether currently in existence or otherwise and whether vested or contingent including (without limitation) copyright (including foreign language translation rights), design rights, database rights, rights in any domain names, registered designs, patents, trademarks, trade names, signs and other designations provided the foregoing are of a proprietary nature and all similar rights whether registered or otherwise (including, without limitation, all extensions, reversions, revivals and renewals thereof). The above shall include, in relation to registrable rights, any applications made or rights to make applications in respect of any such rights.
- Respondent means any individual to whom the Lumi Apps is made available and/or who provides a response to a Lumi Apps event in connection with this Agreement.
- Respondent Data means information or personal data (as that term is defined in the Data Protection Legislation) provided by a Respondent in the course of responding to a Lumi Apps event.
- Party means either Lumi or Customer as the context requires.
- Term has the meaning given to it in the Special Terms.
- Online Stores means the App Store, the Android Market and any other websites or portals where versions of the Lumi Apps App are made available for download at Lumi’s discretion from time to time.
- Raw Data means any information or data relating to Respondents supplied by Customer, but excluding Respondent Data.
- Event means an event or series of events designed, scripted, developed and/or deployed by Customer to Respondents using the Lumi Dashboard and the Lumi Apps App pursuant to this Agreement.
- Lumi Apps means Lumi Join, Lumi Show, Lumi Say or any other mobile application made available by Lumi via the Online Stores, as amended and/or updated by Lumi from time to time in its discretion.
- Lumi Dashboard means the interactive web-based portal made available by Lumi to Customer for the purposes of scripting, designing and deploying an Event to Respondents as well as generating real-time reports of data collected through the Events.
Subject to execution of this Agreement and payment of the Fees, Lumi shall grant to Customer a personal, non-exclusive, non-transferable right to access and utilise the Lumi Dashboard for the duration of the Term for the sole purpose of an Event and viewing event results.
use commercially reasonable efforts to make the Lumi Apps App available to Respondents free of charge via the Online Stores and subject to each Respondent’s acceptance of the App T&Cs and their ability to download, install and operate the Lumi Apps App on a compatible device;
host (or procure hosting of) event content and Respondent Data in accordance with Clause 6; and
provide such other services as may be agreed with Customer from time to time at agreed rates.
Customer acknowledges that Lumi shall not be responsible for:
sourcing, procuring or managing the relationship of Respondents; or
verifying the integrity, accuracy, reliability, quality or legality of any Raw Data, Respondent Data or any event content.
Fees and Payments
The Customer shall pay the Fees to Lumi in accordance with the Special Terms and this Clause 3.
Payments due under this Agreement shall be made in cleared funds within 30 days of the date of the relevant invoice.
If Customer fails to make any payment to Lumi under this Agreement by the due date, then, without prejudice to any other right or remedy available to it, Lumi shall be entitled to charge interest on such overdue sum at the rate of 3% above the Hong Kong dollar prime lending rate of the HongKong Shanghai Banking Corporation Limited from time to time, calculated from the due date up to the date of payment.
All sums payable under this Agreement shall be free and clear of all deductions or withholdings whatsoever unless the deduction or withholding is required by law or is made in accordance with the provisions of this Agreement. If any deductions or withholdings are required by law to be made from the payment of any sum, the Customer shall pay to Lumi such sums as will, after that deduction or withholding has been made, leave Lumi with the same amount as it would have been entitled to receive in the absence of any such requirement to make such withholding or deduction.
Intellectual Property Rights
All Intellectual Property Rights in the Lumi Dashboard, the Lumi Apps and any other materials used or supplied by Lumi in connection with the performance of this Agreement (the “Lumi Materials“) shall remain vested in Lumi (or its licensors).
All Intellectual Property Rights in event content, Raw Data and Respondent Data (the “Customer Materials“) shall remain vested in Customer (or its licensors).
Customer grants to Lumi a non-exclusive, royalty-free licence to use the Customer Materials (and including a right to sub-licence) for the purpose of performing its obligations under this Agreement.
Neither Party may use the other Party’s name, trade marks, logo or service marks except as expressly permitted in this Agreement or with their prior written consent.
Each Party shall notify the other immediately if it becomes aware of any unauthorised use of the other’s Intellectual Property Rights and will assist the other (at the other’s costs) in taking all reasonable steps to defend their rights therein.
The provisions of this Clause 4 shall survive the termination of this Agreement.
Either Party may terminate this Agreement immediately upon written notice to the other Party:
under Clause 11.4;
in the event of a material breach of this Agreement by the other Party which is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the Party not in default of a written notice on the other Party, specifying the nature of the breach and requiring that the same be remedied; or
if the other Party shall cease carrying on business in the normal course, or shall call a meeting of its creditors to make a proposal for a voluntary winding-up or any other such arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 178 of the Companies Ordinance (Cap 32) or equivalent legislation, or if a trustee, liquidator , receiver, manager or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of arrangement or restructuring process).
On termination of this Agreement under Clause 5.1 or expiry of this Agreement for any other reason:
subject to Clause 7.1, all licences granted under this Agreement shall immediately terminate;
Customer shall promptly pay to Lumi all Fees due, including in respect of services performed, up to the date of termination or expiry; and
each Party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
Early cancellation of this Agreement prior to expiry of the Term by the Customer shall make it liable to pay to Lumi the cancellation charges as set out in Clause 6.2.
If the Customer cancels 60 days or more from date of subscription, the charge shall be 10% of fees;
If the Customer cancels less than 60 days from date of subscription, the charge shall be 25% of fees;
If the Customer cancels 7 days or less from date of subscription, the charge shall be 100% of fees.
Subject to Clause 5.1, cancellation charges shall be due and payable immediately upon notice of cancellation of the Agreement by the Customer.
All Respondent Data shall be owned by Customer. Customer hereby grants to Lumi a perpetual, non-exclusive and royalty-free licence to use the Respondent Data and the Raw Data for its own purposes provided that such use is on an aggregated basis and does not identify, or reveal any personally identifiable information regarding, any individual Respondent. In respect of use for such purposes, Lumi shall act as data user (for the purposes of, and as defined in, the Data Protection Legislation).
For the purposes of the Data Protection Legislation, and for the purposes of processing of the Respondent Data and Raw Data to the extent necessary for performance of this Agreement, Customer shall be data user (as defined in the Data Protection Legislation) of the Respondent Data and Lumi shall be data processor of the Respondent Data and Raw Data in connection with processing necessary for the performance of its obligations under this Agreement, and Lumi shall:
process the Respondent Data and Raw Data solely in accordance with Customer’s lawful instructions from time to time; and
adopt and maintain appropriate security measures for processing the Respondent Data and Raw Data, both in terms of the technology used and how it is managed.
Customer agrees and acknowledges that the Respondent Data and the Raw Data may be hosted, stored and/or processed by third party service providers on Lumi’s behalf, and that such hosting, storage and/or processing may take place outside Hong Kong.
Customer represents, warrants and undertakes that:
it has obtained from the relevant individuals to whom such personal data relates sufficient consents in order for Lumi and any relevant third parties to be able to lawfully process it in accordance with this Agreement;
in collecting, processing and supplying such personal information, it has complied with the Data Protection Legislation and all other applicable laws and regulations; and
receipt or use of such personal data by Lumi and/or any relevant third parties in accordance with Customer’s instructions will not put Lumi and/or any relevant third party in breach of any Data Protection Legislation or other applicable laws or regulations, or infringe the rights of any third party,
and indemnifies Lumi and its Associates and third party suppliers against any loss, cost or damage arising out of any breach of any of the above representations, representations or undertakings.
Each Party warrants to the other that:
it has full power and authority to enter into this Agreement and grant the rights set out within it, and that by doing so it will not be in breach of any obligation to a third party; and
it shall comply with all applicable laws in performing its obligations under this Agreement.
The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law. The Lumi Dashboard, the Lumi Apps and any other products or services supplied by Lumi are provided “as is” and without any warranty as to merchantability, fitness for a particular purpose or that they are error-free or will operate without interruption.
Subject to Clause 9.2, Lumi’s maximum aggregate liability under or in connection with this Agreement (including any indemnity contained in this Agreement), whether in contract, misrepresentation, tort (including negligence) or otherwise, shall in no circumstances exceed the total Fees paid to Lumi under this Agreement.
Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent the same may not be excluded or limited as a matter of law.
Subject to Clause 9.2, in no event will either party be liable under or in connection with this Agreement for loss of actual or anticipated income or profits, loss of goodwill or reputation, loss of anticipated savings or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
Each of the Parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other Party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other Party (“Confidential Information”).
Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
Confidential Information shall exclude information which:
at the time of receipt by the recipient is in the public domain;
subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
is lawfully received by the recipient from a third party on an unrestricted basis; and/or
is already known to the recipient before receipt hereunder.
Each of the Parties undertake to maintain the confidentiality of the other Party’s Confidential Information at all times and to keep the other Party’s Confidential Information secure and protected against theft, damage, loss or unauthorised access. Neither party shall at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other Party, use, disclose, exploit, copy or modify any of the other Party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
Each of the Parties undertakes to disclose the other Party’s Confidential Information only to those of its Associates, professional advisors and (in the case of Lumi only) to service partners to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
Neither Party shall be in breach of this Clause 10 if it discloses the other Party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other Party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
The terms of and obligations imposed by this Clause 10 shall survive the termination of this Agreement for any reason.
Neither Party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
Force Majeure Events shall include but not be limited to the following:
strikes (other than of its own staff), lock-outs or other industrial action;
civil commotion, riot, invasion, war (whether declared or not) or threat of or preparation for war;
fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
impossibility of the use of all means of public or private transport, or any communications or information network (including the internet);
unavailability of any electricity or other utilities, or unavailability or material change in any third party technologies or platforms (or the rules governing such technologies or platforms) which is not due to act or omission of a party to this agreement;
error, failure, interruption, delay or non-availability of any goods or services supplied to Lumi by a third party;
act or order of any authority; or
compliance with any change in law or change in regulation which would prohibit the performance of any obligation pursuant to this Agreement.
The party whose performance is affected by a Force Majeure Event shall, within two (2) Business Days of becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding 30 (thirty) days the non-affected party shall have the right to terminate this Agreement forthwith on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
Any notice, invoice or other communication which either Party is required by this Agreement to serve on the other Party shall be sufficiently served if:
sent by personal delivery, registered post or recorded delivery to the other Party at the address specified in this Agreement (or such other address as is notified to the other party in writing); or
sent by email or facsimile to that Party, using the details provided in the Special Terms provided that email and/or facsimile shall not be sufficient for notices of termination or of a claim.
by personal delivery shall be deemed to have been given upon the day on which it is actually received by the relevant Party;
by registered post or recorded delivery shall be deemed to be served three (3) Business Days following the day of posting;
by facsimile transmission shall be deemed to be served on the day of transmission if transmitted before 4.00 p.m. on a Business Day, but otherwise on the next following Business Day; and
by email shall be deemed to be served upon receipt by the sending Party of an email (emanating from the email address of an authorised representative of the relevant Party) which confirms receipt of the notice. For the avoidance of doubt, an automatically generated ‘read receipt’ or ‘delivery receipt’ does not constitute confirmation of receipt for the purposes of this Clause.
Assignment and Sub-Contracting
Customer acknowledges that Lumi relies on third parties to deliver its products and services, and therefore consents to Lumi sub-contracting performance of certain parts of its obligations under this Agreement to such third parties.
Neither Party may assign, novate, or transfer this Agreement or any part of it without the prior written consent of the other, save that Lumi may assign, novate or transfer all or part of it to an Associate on prior written notice to the Customer.
Third Party Rights
Save in respect of Associates of Lumi, a person who is not a party to this Agreement has no right to enforce any term of this Agreement.
Subject to Clause 6.4, the failure of any Party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that Party’s right later to enforce or to exercise it.
Lumi shall be entitled to describe, in general terms, its relationship with Customer and its provision of the Lumi Services in publicity materials, and to include Lumi branding on the Lumi Apps, the Lumi Dashboard and other Lumi Materials.
If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the Parties acknowledges and agrees that:
in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and
its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement
The construction, validity and performance of this Agreement shall be governed by the laws of Hong Kong and the Parties submit to the non-exclusive jurisdiction of the courts of Hong Kong to resolve any dispute between them, without regard to any choice or conflicts of law rules.
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
No modification or variation of this Agreement (or any document entered into pursuant to or in connection with this Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the parties to this Agreement.