1. Interpretation
1.1 Definitions:
Affiliate: an entity (a) that directly or indirectly controls, is controlled by, or is under common control with a party under this Contract, where control means ownership of more than fifty per cent (50%) of the securities or voting power of the subject entity, and in the context of any other business entity, shall mean the right to exercise similar management and control of such entity, or (b) which is controlled, directly or indirectly, by the ultimate parent company of the party.
Business Day: a day other than a Saturday, Sunday or public holiday in Hong Kong S.A.R.
Charges: the Fees and Expenses payable by the Client for the supply of the Services by East Lane, as set out in the agreed proposal above (Proposal).
Conditions: these terms and conditions as set out below.
Confidential Information: means any information, in whatever form or medium of Discloser or its Affiliates furnished or otherwise made available to Recipient in connection with the provision of the Services. Such Confidential Information includes, but is not limited to, Client Materials and Deliverables, trade secrets, knowhow, Intellectual Property Rights, formulas, techniques, software programs and documentations, research, services, data, files, products, technical data or specifications, drawings, business plans, strategic plans, forecasts, financial records and financial projections and information regarding the Discloser's assets, policies, procedures, employees, legal and regulatory affairs, ideas, inventions, discoveries, distribution, sales, marketing, expenses, suppliers, relationships with third parties as well as third-party confidential information and reports prepared by or for the Recipient based on any of the foregoing, together with all analyses, compilations, memoranda, notes and other materials which contain, reflect or are based, in whole or in part, upon such information either directly or indirectly in written, oral, or electronic form. Confidential Information shall be deemed to include the existence of this Contract and the fact that Recipient is meeting with or receiving information from Discloser.
Contract: the contract between the Client and East Lane for the supply of the Services in accordance with the Proposal and these Conditions.
Client Materials: all materials, tools, drawings, specifications and data supplied by the Client to East Lane.
Deliverables: all documents, products and materials developed by East Lane or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation data, reports and specifications (including drafts) set out in the Proposal.
Discloser: a party to this Contract when it discloses its Confidential Information, directly or indirectly, to the other party or to its Representatives.
East Lane IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Client Materials incorporated in them.
Intellectual Property Rights: copyright and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Recipient: a party to this Contract when it receives Confidential Information, directly or indirectly, from the other party or on its behalf.
Representatives: a party’s employees, officers, members, directors, representatives, contractors, subcontractors, current or potential capital providers and co-investors, auditors, legal and other professional advisers.
Services: the services, including without limitation any Deliverables, to be provided by East Lane to the Client pursuant to the Contract, as described in the Proposal.
Services Start Date: the day on which East Lane is to start provision of the Services
1.2 Interpretation:
(a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
(i) it is in force as at the date of this Contract; and
(ii) as at the date of this Contract under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for exampleor any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. Commencement and term
The Contract shall commence on the date when it has been signed by authorised representatives of both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 1 month's written notice to terminate.
3. Supply of services
3.1 East Lane shall supply the Services to the Client from the Services Start Date in accordance with the Contract.
3.2 In supplying the Services, East Lane shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Proposal; and
(c) comply with all applicable laws, statutes, regulations from time to time in force, provided that East Lane shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
4. Client's obligations
4.1 The Client shall:
(a) co-operate with East Lane in all matters relating to the Services;
(b) provide, in a timely manner, such information as East Lane may reasonably require, and ensure that it is accurate and complete in all material respects.
4.2 If East Lane's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, East Lane shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses East Lane sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Data protection
The parties shall comply with their data protection obligations as set out in the applicable data protection laws:
(a) to the extent the United Kingdom General Data Protection Regulation applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;
(b) to the extent the European Union General Data Protection Regulation applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data;
(c) to the extent the Personal Data (Privacy) Ordinance (Cap. 486) applies, the law of the Hong Kong S.A.R which relates to the protection of personal data.
6. Intellectual property
6.1 East Lane and its licensors shall retain ownership of all East Lane IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
6.2 East Lane grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy East Lane IPRs for the purpose of receiving and using the Services and the Deliverables in the Client's business.
6.3 The Client grants East Lane a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client in accordance with the Contract.
6.4 The Client shall indemnify East Lane in full against any sums awarded by a court against East Lane arising out of or in connection with any claim brought against East Lane for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by East Lane.
7. Charges and payment
7.1 In consideration for the provision of the Services, the Client shall pay East Lane the Charges in accordance with this clause 7, or as specified in the Proposal.
7.2 Unless otherwise stated in the Proposal, the Client shall pay each invoice due and submitted to it by East Lane, within 30 days of receipt, to a bank account nominated in writing by East Lane.
7.3 If the Client fails to make any payment due to East Lane under the Contract by the due date for payment, then, without limiting East Lane's remedies under clause 9 (Termination):
(a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 10% a year.
(b) East Lane may suspend all Services until payment has been made in full.
7.4 All amounts due under the Contract from the Client to East Lane shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.3 Nothing in this clause 8shall limit the Client's payment obligations under the Contract.
8.4 Nothing in the Contract shall limit the Client's liability under clause 6.4 of these Conditions.
8.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
8.6 Subject to clause 8.2(No limitation in respect of deliberate default), clause 8.3 (No limitation on the Client's payment obligations), clause 8.4(Liability under identified clauses) and clause 8.5(Liabilities which cannot legally be limited), either party’s total liability to the other party shall not exceed a sum equivalent to all sums paid by the Client under the Contract in respect of Services invoiced by East Lane to the Client. Such paid sums do not include any expenses or third-party costs incurred by East Lane in connection with the Contract and passed through to the Client for reimbursement.
8.7 The caps on East Lane’s liabilities shall be reduced by:
(a) payment of an uncapped liability;
(b) amounts awarded or agreed to be paid under clauses 6.4; and
(c) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
8.8 Subject to clause 8.2(No limitation in respect of deliberate default), clause 8.3(No limitation on the Client's payment obligations), clause 8.4(Liability under identified clauses) and clause 8.5(Liabilities which cannot legally be limited), this clause 8.8sets out the types of loss that are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.9 East Lane has given commitments as to the compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 5, 6 and 7 of the Hong Kong Supply of Services (Implied Terms) Ordinance (Cap. 457) are, to the fullest extent permitted by law, excluded from the Contract.
8.10 Unless the Client notifies East Lane that it intends to make a claim in respect of an event within the notice period, East Lane shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 1 month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9. Termination
9.1 Subject to Clause 2 above, and without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable, or if such breach is remediable, fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, East Lane may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Client.
9.3 On termination of the Contract for whatever reason:
(a) the Client shall immediately pay to East Lane all of East Lane's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, East Lane may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and
(c) termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination as shall the provisions of clause 6 (Intellectual Property), clause 8 (Limitation of Liability) and clause 10.3 (Confidentiality) as well as any other provisions necessary to give effect to the Contract or the intentions of the parties thereunder.
10. General.
10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. Should such circumstances continue for more than 90 days, either party may terminate the Contract in accordance with clause 2 above.
10.2 Assignment and other dealings.
(a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without East Lane's prior written consent.
(b) East Lane may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
10.3 Confidentiality.
(a) The Recipient undertakes that it shall not at any time disclose to any person any Confidential Information of the Discloser, without the Discloser’s prior written consent, except as permitted by clause 10.3 and shall protect the Discloser’s Confidential Information against unauthorised use or disclosure using at least those measures that the Recipient takes to protect its own Confidential Information of a similar nature, but no less than reasonable care.
(b) Each party may disclose the other party's confidential information without the other party’s prior written consent:
(i) to its and its Affiliates’ Representatives who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its Representatives to whom it discloses the other party's confidential information comply with this clause 10.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that the Recipient receiving such order shall promptly notify the Discloser in writing and use reasonable good faith efforts to: (a) disclose only the specific Confidential Information legally required to be disclosed; and (b) assist the Discloser (at the Discloser’s request) in obtaining a protective order or other appropriate assurances that the confidential nature of the Confidential Information shall be protected and preserved. Any costs incurred by the Recipient in resisting or complying with the disclosure efforts described in this clause 10.3(ii) (including reasonable legal costs) shall be borne by the Discloser.
(c) Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) In the event of any inconsistency between the terms of the Proposal and these Conditions, the terms of the Proposal shall prevail.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the authorised representatives of the parties.
10.6 Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 10.7shall not affect the validity and enforceability of the rest of the Contract.
10.8 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at the addressee’s registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the following email address:
v.li@eastln.com(for the attention of Ms Vivien Li)
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is delivered at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service within the same country, at 9.00 am on the second Business Day after posting;
(iii) if sent by pre-paid airmail providing proof of postage, at 9.00 am on the 15th Business Day after posting;
(iv) if sent by an internationally recognised courier company, at the time of recorded receipt; or
(v) if sent by email, at the time of transmission, provided no undeliverable message is generated or, if this time falls outside business hours in the place of receipt, on the next Business Day of the place of receipt when business hours resume. In this clause 10.8(b)(v), business hours means 9.00 am to 6.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 10.8does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.9 Third party rights.
(a) The Contract does not give rise to any rights under the Hong Kong Contracts (Rights of Third Parties) Ordinance (Cap. 623) to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of Hong Kong S.A.R.
10.11 Jurisdiction. Each party irrevocably agrees that the courts of Hong Kong S.A.R shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
10.12 No partnership or agency. The relationship of East Line to the Client shall be that of an independent contractor. Nothing in the Contract is intended to or shall operate to create an employment relationship, a partnership or joint venture of any kind between East Lane and the Client or to authorise either East Lane or the Client to act as agent for the other, and neither East Lane nor the Client shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
10.13 Representations and Warranties.
(a) East Lane represents and warrants to the Client:
(i) it is free to enter into the Contract and has the capability to fully perform its obligations called for herein;
(ii) it owns or possesses the right to provide the Services to Client in accordance with the terms and provisions of the Contract;
(iii) it has granted no other license with respect to the Services which would conflict with the terms of the Contract;
(iv) to its knowledge, as of the date hereof, it is not engaged in any litigation or conflict involving its rights in and to the Services which would impact the Client’s rights under the Contract;
(v) East Lane has taken, and will continue to take, reasonable endeavours to ensure that the Services, will not contain any computer virus or other code intended to, and/or capable of, disabling the operation or full or partial functionality of the software, including without limitation, any “time bomb”, “trojan horse”, or “cancelbot”, as such terms are regularly understood in the software industry or any inappropriate material.
(b) Subject to the limitations in clause 8, the Client is entitled to rescind the Contract, or claim loss and damages in the alternative, as a result of East Lane’s deliberate or fraudulent breach of the representations and warranties as set out in clause 10.13(a) above.
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