Terms and Conditions

THIS AGREEMENT (“Agreement”) is made on the date both side have signed this document (“Effective Date”) and entered into by and between the CLIENT and the CONTRACTOR.

WHEREAS

(A)      The CLIENT desires certain development services in connection with the design and development of a software and system delivering a services (“Project”), for its business;

(B)      CONTRACTOR is qualified and desires to render such development services for the Project to the CLIENT in accordance with the terms and conditions of this Agreement.

NOW IT IS HEREBY AGREED as follows:

1. DEFINITIONS AND INTERPRETATIONS

1.1            Definitions

For the purpose of this Agreement the following words and expressions shall have the respective meaning assigned to them:-

“Agreement” means this document together with any appended Schedules, as amended from time to time in accordance with Clause 10 of this Agreement.

“Commencement Date” means the date both side signed this Agreement.

“Confidential Information” means all information (in whatever format) concerning, Know-How, business model, business process, business and other information relating to a Party and supplied to the other Party in performance of this Agreement, or which is designated in writing as confidential or which by its nature is confidential.  Confidential Information shall not include:

(i)    information which at the time of disclosure is publicly known;

(ii)   information which after disclosure becomes publicly known other than as a result of any breach of this Agreement;

(iii)  information which can be shown to be known to the other Party, other than under a subsisting obligation of confidentiality or restricted use, prior to the disclosure;

(iv)  information made available to the other Party by a third party having a right to do so and who has not imposed on that Party any subsisting obligation of confidentiality or restricted use in respect thereof.

 “Deliverables” means the files, systems, related documentation and/or other information as detailed in corresponding section, which are to be created, developed, supplied and/or delivered by CONTRACTOR (either independently or in concert with the CLIENT or third parties) pursuant to this Agreement.

“Design Techniques” means any methodologies, data, systems, logical flow elements, libraries, algorithms and search strategies used during the Project and/or employed in the process of creating the Designs.

“Designs” means the hardware and software representation of a system delivering the required functions and features developed or designed by CONTRACTOR or CLIENT.

“Expiry Date” means the date on which the Parties sign off on the Project or 6-months after the commencement date.

“Fees” means CONTRACTOR’s service fees which are set out in this agreement.

“CLIENT Background Intellectual Property” means any and all Intellectual Property Rights subsisting in any material, documentation and/or any other work in whatever form and which is created and supplied by the CLIENT to CONTRACTOR for the purpose of the Project.

“CONTRACTOR Background Intellectual Property” means any and all Intellectual Property Rights subsisting in any material, documentation and/or any other work in whatever form and which is created by CONTRACTOR prior to the commencement of the Project or developed outside the scope of the Project, and which shall include Designs and Design Techniques.

“Foreground Intellectual Property” means any and all Intellectual Property Rights subsisting in any material, documentation and/or any other work in whatever form and which is created by CONTRACTOR during the commencement of the Project or developed within the scope of the Project, and which shall include, Deliverables, Designs and Design Techniques.

“Insolvency Event” means any of the following events:

(a)                   if a meeting is convened or a petition presented and properly served (unless it is demonstrated to the satisfaction of the other Party that the petition is frivolous or vexatious and such petition is set aside before it is advertised and in any event within 14 days of presentation and service) or an order is made or a resolutions is passed for the winding up of a Party or if a receiver and/or manager is appointed over the whole or a substantial part of the property, assets or undertaking of a Party or any analogous event to any of the foregoing occurs in relation to a Party in any jurisdiction; or

(b)                   if a Party becomes or is declared to be insolvent or ceases or suspends generally payment of its debts or is or is deemed to be unable to pay its debts as they fall due; or

(c)                   if a Party commences or announces an intention to commence negotiations with all or any class of its creditors with a view to the general readjustment or rescheduling of its indebtedness; or

(d)                   if a Party enters into any composition or other arrangement for the benefit of its creditors generally or any class of creditors; or

(e)                   if a Party is the subject of any voluntary or involuntary proceedings under any law, regulation or procedure relating to reconstruction of its debts or readjustment of its debts; or

(f)                    if a Party has a moratorium declared in respect of all or any class of its indebtedness.

“Intellectual Property Rights” means any right to, and any interest in (whether or not any of these are registered, and including any application for registration) any patent, design, trade mark, service mark, domain name, trade and business name and all goodwill rights associated with such names, any copyright, database right, right to confidentiality, trade secret and any other proprietary right or form of intellectual property (protectable by registration or not) or moral right, in respect of any know-how, technology, concept, idea, invention, data, program or other software (including in source and object codes), specification, formula, drawing, schematic diagrams, flow charts, programme, utility model, business model, brand, design, system, process, logo, mark, style or other thing, conceived, used, developed or produced by any person and all rights of a similar nature in any part of the world, including rights to bring an action for passing off and rights to apply for protection in respect of any such rights.

“Know-How” means any unpatented technical information including, without limitation, information relating to any inventions, discoveries, concepts, methodologies, business processes and business models that are not in the public domain.

“Parties” means CONTRACTOR and the CLIENT, and each individually is referred to as a “Party”.

“Project” means the programme of work as detailed in System Development section, as amended from time to time in accordance with Clause 10.9 of this Agreement.

“Schedule” means any schedules (if any) attached to this Agreement and incorporated by reference to this Agreement.

“Services” means the development services to be provided by CONTRACTOR during the Project.

1.2            Interpretation

In this Agreement:

(a)             All references to clauses and sub-clauses are to clauses and sub-clauses of this Agreement.

(b)             Words importing the singular number only shall include the plural number and vice versa; words importing the masculine gender only shall include the feminine gender; and words importing persons shall include corporations.

(c)             References to accounts, records and/or information shall include any means or modes of storage or retrieval of the same including (but without limiting the generality of the foregoing) computer disks, tapes, cassettes, microfiches, the Internet, intranets and the like.

(d)             The clause headings in this Agreement are inserted for ease of reference only and shall not affect the construction or interpretation of this Agreement.

(e)             References to this Agreement or any other document include references to this Agreement, its recitals, or such documents as varied, supplemented and/or replaced in accordance with this Agreement from time to time.

(f)              References to any Party shall, where relevant, be deemed to be references to or to include, as appropriate, their respective lawful successors, permitted assigns or transferees.

(g)             References to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended and any subordinate legislation made from time to time under it.

(h)             References to “writing” include e-mail and facsimile transmission legibly received except in relation to any certificate, report, notice or other document which is expressly required by this Agreement to be signed, and “written” has a corresponding meaning.

2. TERM

2.1                   This Agreement shall take effect on the Commencement Date and shall remain in effect until the Expiry Date unless terminated pursuant to Clause 9 of this Agreement or otherwise lawfully terminated.

3. DUTIES AND RESPONSIBILITIES OF CONTRACTOR

3.1                   CONTRACTOR shall perform its duties and responsibilities in accordance with the scope of Project, provide the Services and deliver the Deliverables in accordance with the programme of work as set out in this agreement.

3.2                   CONTRACTOR shall ensure that its employees assigned to the Project shall be skilled and experienced in the relevant field as required for the proper and efficient execution of the Project.

4. DUTIES AND RESPONSIBILITIES OF CUSTOMER

4.1                   The CLIENT shall cooperate and provide relevant information and materials when reasonably requested by CONTRACTOR.

4.2                   The CLIENT shall ensure that its employees assigned to the Project shall be skilled and experienced in the relevant field as required for the proper and efficient execution of the Project.

5. FEES AND TERMS OF PAYMENT

5.1                   In consideration of CONTRACTOR providing the Services to the CLIENT, the CLIENT agrees to pay to CONTRACTOR the Fees and CONTRACTOR is entitled to invoice the CLIENT in accordance with the payment terms and schedule specified in this agreement.

5.2                   Any additional work on the Project requiring services that are not set out in this Agreement shall be deemed to be out of scope work and out of scope services and CONTRACTOR shall be entitled to additional charges for such work upon written consent is provided by the CLIENT.

5.3                   Except in the event of a disagreement concerning the amount due, invoices submitted by CONTRACTOR shall be payable within 20 working days of receipt by the CLIENT.

5.4                   The Fee described in this Agreement shall be inclusive of any applicable duties, value added tax, goods and services tax, sales taxes, transfer tax and similar taxes and levies.  CLIENT and CONTRACTOR shall comply with all relevant tax laws and regulations in respect of the performance of its obligations under this Agreement and all taxes arising from or as a result of this Agreement shall be borne by the party responsible and liable for such taxes in accordance with the applicable tax laws.

5.5                   Taxes based on CONTRACTOR’s income shall be CONTRACTOR’s sole responsibility, provided that, if CLIENT is required by the laws of any tax jurisdiction to withhold income or profits taxes from a Fee defined under this Agreement, CLIENT shall only be required to pay CONTRACTOR the net amount of the Fee after deductions of the taxes and within reasonable period after the withholding, CLIENT shall provide CONTRACTOR with official tax certificates documenting remittance of the taxes.  Any reasonable expenses incurred by CLIENT in relation to the withholding tax reporting requirements of CONTRACTOR under this Agreement should be reimbursed by CONTRACTOR to CLIENT.

5.6                   In the event, CONTRACTOR shall receive a refund of all or any part of such taxes which CLIENT has paid and discharged (with the exception of withholding taxes), the amount of such refund shall promptly be remitted to CLIENT by CONTRACTOR.

6. CONFIDENTIALITY

6.1                   This Agreement, all matters pertaining to it and all information provided by one Party to the other pursuant to this Agreement shall be treated as Confidential Information and each Party undertakes to the other Party:

6.1.1                to maintain the Confidential Information in confidence and use it only for the purposes of this Agreement and for no other purpose and in particular, but without prejudice to the generality of the foregoing, not to make any commercial use of such information or use the same for the benefit of itself or of any third party other than pursuant to this Agreement;

6.1.2                not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonably necessary for the purposes of this Agreement and that any copy, reproduction or reduction in writing so made shall be the property of the disclosing Party only;

6.1.3                not to disclose the Confidential Information to any of its employee(s) of the Party or to any third party except in confidence to such of its employee(s) or to any third party who need to know the same for the aforesaid purposes of this Agreement and provided that such employee(s) and third party are obliged by their contracts of employment or service.

6.1.4                to be responsible for the performance on the part of any of its employee(s) or any third party to whom the same is disclosed; and

6.1.5                to apply to such information no lesser security measures and degree of care than those which the receiving Party applies to its own confidential  or proprietary information and which the receiving Party warrants as providing adequate protection of such information from unauthorised disclosure, copying or use.

6.2                   Without prejudice to Clause 6.1, CONTRACTOR shall maintain the confidentiality of all CLIENT Background Intellectual Property and of all Intellectual Property Rights subsisting in the Know-How provided by CLIENT under this Agreement. CONTRACTOR shall not make available CLIENT Background Intellectual Property and/or Know-How of CLIENT in any form to any person or entity other than the CONTRACTOR’s own employees or its independent contractors who are under the same confidentiality obligations as set out in Clause 6 of this Agreement, and also on a need-to-know basis.  CONTRACTOR shall ensure that any person who has access to CUSTOMER Background Intellectual Property and/or Know-How of CLIENT does not disclose such confidential information to any unauthorized third party in any form. CONTRACTOR shall not reverse assemble, reverse compile, or otherwise reverse engineer CLIENT Background Intellectual Property, Design Techniques, Designs and/or Know-How of CLIENT in whole or in part.

6.3                   Confidential Information may be disclosed to any third party without prior mutual agreement of the parties where the said disclosure is required by law.

7. INTELLECTUAL PROPERTY RIGHTS

7.1                   CONTRACTOR represents and warrants to CLIENT that the CONTRACTOR and/or its sub-contractors are the owners of all right, title and interest in and to CONTRACTOR Background Intellectual Property that is to be utilized during the Project.

7.2                   Any software and system design, methodology, techniques, Know-How, technology and all Intellectual Property Rights subsisting in them that (i) are not part of CLIENT Background Intellectual Property and CONTRACTOR Background Intellectual Property; and that (ii) are Foreground Intellectual Property developed by CONTRACTOR for the Project shall be owned by the CONTRACTOR and the CLIENT shall have the right to use.

7.3                   CONTRACTOR may use CLIENT’s name or logo in any manner or media, including but not limited to press releases, promotions, advertisements or solicitations, without the prior written approval of CLIENT.

7.4                   CONTRACTOR may include its name or logo in any manner or media in CLIENT’S business, including but not limited to the CLIENT’s products, CLIENT’s Background Intellectual Property and Foreground Intellectual Property for the Project.

7.5                   CONTRACTOR may use the data collected by the product of the project for marketing analysis purpose without the prior written approval of CLIENT.

8. LIMITATION OF LIABILITY

8.1                   Neither Party excludes or limits its liability to the other Party in respect of:

(a)   death or personal injury or otherwise to the extent prohibited by applicable law; or

(b)   any fraud or for any sort of liability that, by law, cannot be limited or excluded; or

(c)   any loss or damage caused by a deliberate breach of this Agreement; or

(d)   a breach of a confidentiality obligation under Clause 6.

8.2                   Subject to Clause 8.1 above, in no event will either Party’s total liability for any direct loss or damage based on contract or tort or negligence or statutory liability arising out of or in connection with this Agreement exceed the greater of the equivalent of 100% of the total amount payable to CONTRACTOR by the CLIENT for the Services provided or to be provided by CONTRACTOR under the terms of this Agreement less the server hardware and hosting service cost stated in System Development. And in no events all fund payable to CONTRACTOR by the CLIENT will be refundable.

8.3                   In no event will either Party have any liability to the other Party for consequential, collateral, special, incidental or indirect damages (such as, without limitation, loss of revenue, loss of profits, loss of business, loss of goodwill) or any punitive or exemplary damages of any kind whatsoever, even if advised of the possibilities of such damages in advance.

8.4                   In no event will the CONTRACTOR have any liability to the CLIENT for consequential, collateral, special, incidental or indirect damages (such as, without limitation, loss of revenue, loss of profits, loss of business, loss of goodwill) or any punitive or exemplary damages of any kind whatsoever, and any failure of performance and interruption of the system not running on the server or workstation not provided by the CONTRACTOR,, even if advised of the possibilities of such damages in advance.

9. TERMINATION

9.1                   Each Party may terminate this Agreement by giving thirty (30) days written notice to the other Party if an Insolvency Event occurs in relation to the other Party.

9.2                   A party may terminate this agreement if the other Party commits, whether by way of act or omission, a breach of any of its material obligations under this Agreement and fails to remedy within fourteen (14) days (or such period as the Parties may mutually agree) after receipt of a written notice from the Party, such notice specifying the breach complained of and the action required to remedy the same.

9.3                   CLIENT may terminate this Agreement by giving the CONTRACTOR at least thirty (30) days prior written notice. And the CLIENT shall settle all the balanced amount of this agreement.

9.4                   CONTRACTOR may terminate this Agreement after the expiry date of this agreement by giving the CLIENT at least thirty (30) days prior written notice. And the CLIENT shall settle all the balanced amount of this agreement.

9.5                   In the event of this Agreement being terminated by CLIENT pursuant to Clause 9.1 above, the CLIENT shall immediately settle all payment to CONTRACTOR including but not limited to all outstanding undisputed invoiced amount and any other sums invoiced and undisputed which are due under the terms of this Agreement.

9.6                   The termination of this Agreement shall not affect or prejudice any claim that any Party may have against the other arising out of this Agreement prior to such termination or arising from such termination.

9.7                   Any right or remedy to which either Party is or may become entitled under this Agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this Agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.

9.8                   Upon termination of this Agreement, all rights granted under this Agreement shall cease immediately, except in relation to those provisions that shall survive termination.

10. GENERAL PROVISIONS

10.1                Choice of Law.  This Agreement will be governed by and constructed in accordance with the laws of Hong Kong and the parties hereby submit to the non-exclusive jurisdiction of the courts of the Hong Kong Special Administrative Region.

10.2                Arbitration.  Subject to Clause 10.3, any dispute, difference, controversy or claim arising between the Parties out of or in relation to or in connection with this Agreement shall be amicably settled by mutual consultation.  In the event that the Parties fail to reach an amicable settlement within forty five [45] days after the occurrence of such dispute, difference, controversy or claim, such dispute, difference, controversy or claim shall be referred to and determined by arbitration at the Hong Kong International Arbitration Centre and shall be a domestic arbitration conducted in accordance with the HKIAC’s UNCITRAL Domestic Arbitration Rules.

10.3                Intellectual Property Dispute.  The Parties agree that any dispute, difference, controversy or claim relating to, involving or having any connection with Intellectual Property Rights shall be resolved by judicial resolution.  The Parties submit to the exclusive jurisdiction of the Hong Kong Courts in respect of such dispute, difference, controversy or claim.

10.4                Force Majeure.  Except for the obligations to make payments under this Agreement, non-performance of the obligations under this Agreement by either Party shall be excused to the extent that performance is rendered impossible by strike, fire flood, governmental action, earthquake, or any other act of God where failure to perform is beyond the reasonable control of the non-performing Party.

10.5                No Waiver.If a Party fails to enforce, or delays in enforcing, an obligation of the other Party, or fails to exercise, or delays in exercising, a right under this Agreement, such failure or delay will not affect its right to enforce that obligation or constitute a waiver of that right.  Any waiver of any provision of this Agreement will not, unless expressly stated to the contrary, constitute a waiver of that provision on a future occasion.

10.6                 Formalities. Each Party will take any action and execute any document reasonably required by the other Party to give effect to any of its rights under this Agreement, or to enable their registration in any relevant territory provided the requesting Party pays the other Party’s reasonable expenses.

10.7                 Notices.  Any notice, report, approval or consent required or permitted under this Agreement shall be in writing and will be deemed to have been duly given: (i) if delivered personally, on the date of delivery, (ii) if by facsimile, on completion of transmission or (iii) if sent by express delivery service to the respective addresses of the Parties as set out in this Agreement, on the 2nd day after posting.  If to CONTRACTOR, Attention: Mr. Warren Cheung, Room 804-A13, 8/F, Block A, Po Yip Building, 62-70 Texaco Road, Tsuen Wan, N.T., Hong Kong.

10.8                 Amendments. No variation or amendment of this Agreement will be effective unless it is made in writing and signed by both Parties.

10.9                 Assignment This Agreement can only be assigned by the CLIENT to other party which the CLIENT thinks fit.

10.10               Severability.  If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision or portion of the Agreement will be enforceable to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.

10.11               Survival.  The following provisions and all rights of either Party accrued under them shall survive the expiry or earlier termination of this Agreement: Clauses 7, 8, 9.4, 9.7, 10.1, 10.2, 10.3, 10.5, 10.9, 10.10 and 10.11.

10.12               Entire Agreement.  This Agreement constitutes the entire agreement between CONTRACTOR and CLIENT and supersede all previous agreements and understandings, whether oral or written, between CONTRACTOR and CLIENT with respect to the subject matter hereof. In the event that any of the terms of this Agreement become or are declared to be illegal by any court of competent jurisdiction, such terms shall be null and void and shall be deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.