Terms of Business
Terms of Business
Last updated on 10 March, 2020.
These terms of business (“Terms”) govern your use of the services provided by Digital Services Limited (trading as Elevate Digital), a company incorporated in Hong Kong, with registered address at 17 Rm 13, BLK C, 09/F Core C, Cyberport 3, 100 Cyberport Road, Pok Fu Lam, Hong Kong (the “Company” or “we”).
By signing a Service Agreement with us, you become our customer (“Customer”) from the date of execution of the Service Agreement and the provisions set out in the Service Agreement as well as the following Terms will apply to you.
In these Terms, each of the Company and the Customer is referred to as a “Party” and collectively “Parties”.
1.1 The following definitions and rules of interpretation apply in the Service Agreement and these Terms.
Commencement Date: Work commences on either the 1st or 15th of the month, upon payment and signing of the Agreement, subject to the discretion of the Company, or as altered in the Notes section of the Services Agreement.
Completion Date: the target date on which the Company will complete the provision of the Services, as stated in the Service Agreement.
Confidential Information: in relation to each Party, any information (whether or not stated to be confidential or marked as such) which it discloses to another Party, or which the other Party obtains from that Party, either orally or in writing or by any other means, under or in connection with these Terms.
Deliverables: all documents, products and materials (including any methodologies, ideas, designs, computer programs, data, reports and specifications) developed by the Company (or its agents, subcontractors, consultants and employees) as part of or in relation to the Services in any form.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, topography 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, renewals or extensions of, 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.
Service Agreement: a service agreement entered into by the Company and the Customer, including any schedules or appendices thereto.
Service Fee: the fee for the Services as stated in the Service Agreement.
Service Period: the period from the Commencement Date up to and include the Completion Date.
Services: the services to be provided by the Company, the scope of which is as more particularly described in the Service Agreement, including any additional work or services as the Parties may from time to time agree in writing.
1.2 Clause, schedule and paragraph headings will not affect the interpretation of these Terms.
1.3 A reference to a person includes a natural person, a corporate or unincorporated body (whether or not having a separate legal personality).
1.4 Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular and a reference to one gender will include a reference to the other genders.
1.5 A reference to writing or written includes fax and e-mail.
2. Supply of services
2.1 The Company will provide the Services to the Customer on and subject to the provisions of the Service Agreement and these Terms.
2.2 The Company Service Period will commence on the Commencement Date and will continue until the Completion Date as stated in the Service Agreement (or such other period as agreed in writing between the Customer and the Company), unless terminated earlier:
(a) as provided by these Terms; or
(b) by the Customer giving to the Company written notice of not less than one (1) month after the Completion Date of services as provided in the Service Agreement.
To avoid any confusion, the Customer may not cancel the contract at any time during the Service Period. If they wish to cancel within the Service Period, the Customer will be liable to pay in full the Service Fee for the total Service Period.
3. Company’s responsibilities
3.1 During the Service Period, the Company will:
- provide the Services to the Customer in accordance with the requirements of the Service Agreement and these Terms;
- perform the Services with all due care, skill and ability in accordance with the applicable best practices and standards in the Company’s industry, profession or trade;
- ensure all personnel involved in the carrying out of the Services have suitable skills and experience;
- promptly notify the Customer of any expected delays or problems in providing the Services and any circumstances which may prevent proper and timely delivery of the Services; and
- upon the Customer’s request, promptly provide such information and reports to the Customer in connection with the progress of performing the Services.
3.2 The Company will comply with all laws and regulations applicable to the Services, including those relating to anti-bribery, anti-corruption and data protection.
4. Customer’s obligation
4.1 To avoid delays, the Customer must provide feedback to the Investment and Price Overview, and Notes schedule as set out in the Service Agreement within seven (7) days of receiving the Service Agreement.
4.2 The Customer will provide clear instructions, documentations and information to the Company promptly upon request, and co-operate with the Company where reasonably requested during the Service Period.
4.3 Where the Company has not received the requested instructions, documentations and information by the start of a cycle, the relevant work may be delayed to the next cycle.
5. Content provided by the Customer
5.1 The Customer warrants that any content (including any literary or artistic works) provided to the Company does not infringe on the Intellectual Property Rights of any third party.
5.2 The Customer will indemnify the Company against all liabilities, costs, expenses, penalties and losses suffered or incurred by the Company (including all reasonable professional costs and expenses) arising out of or in connection with any claims that the content provided by the Customer infringes the Intellectual Property Rights of any third party.
6.1 In consideration of the performance of the Services, payment for services will be automatically deposited via the provided credit card on the date of the payment cycle each month. In the event of a payment failure, payment must be made within 30 days of the invoice date.
6.2 Payment of the first invoice must be completed prior to the Commencement Date.
6.3 After the payment of the first invoice, invoices are provided on anniversary each month of initial project management cycle.
6.4 Once payment for the Service Fee has been settled, no refund will be offered in any circumstances.
6.5 Without prejudice to any other right or remedy that the Company may have, if the Customer fails to pay the Service Fee on the due date of payment, the Company may suspend the provision of any further Services until payment has been made in full.
6.6 The Customer will pay the Service Fee to the Company by such payment method as agreed by the Company in writing. Time is of the essence for the payment of the Service Fee.
6.7 Notwithstanding any other provision of these Terms, all sums payable to the Company under these Terms will become due immediately upon termination.
6.8 The Customer will pay all amounts due under the Service Agreement and these Terms in full without any deduction except as required by law, and will not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any amount due, in whole or in part.
7.1 Each Party undertakes that it will not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by Clause 7.2.
7.2 Each Party may disclose the other Party’s Confidential Information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under these Terms. Each Party will ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this clause; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 No Party may use any other Party’s Confidential Information for any purpose other than to perform its obligations under these Terms.
8. Intellectual property rights in the Deliverables
8.1 By executing the Service Agreement, the Company thereby assigns to the Customer all existing and future Intellectual Property Rights in the Deliverables and all materials embodying these rights, with full title guarantee and free from all third party rights, to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under these Terms, the Company holds legal title in these rights on trust for the Customer.
8.2 The Company will, promptly at the Customer’s request and at the Customer’s expense, at any time either during or after the Service Period, do (or procure the doing of) all such further acts and things and execute (or procure the execution of) all such other documents as the Customer considers necessary or desirable for the purpose of securing or protecting the full benefit and all rights, title and interest in and to the Deliverables for the Customer.
8.3 The Company waives any moral rights in the Deliverables to which it is now or may at any future time be entitled under the law in any jurisdiction, including the right to be identified, the right of integrity and the right against false attribution.
9.1 The Company may terminate the Service Agreement with immediate effect by giving written notice to the Customer if the Customer:
- fails to respond to emails or calls from any representatives of the Company for more than fifteen (15) business days;
- fails to provide requested approvals, assets, content or additional information which is necessary to provide the Services;
- fails to pay Service Fees when they fall due for more than one (1) month; orrefuses to pay for any work carried out by the Company which has been agreed by the Customer in writing to be within the scope of Services.
9.2 Without prejudice to any accrued rights or remedies available to it, either Party may terminate the Service Agreement with immediate effect by giving written notice to the other Party if at any time a Party:
- commits any serious or repeated breach of any of the provisions of these Terms;
- (in the case of the Customer) fails to pay Service Fees when they fall due for more than 1month;
- suspends or ceases to carry on all or a substantial part of its business;
- suspends or is unable to pay its debts when they fall due; or
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Party (other than for the sole purpose of a scheme for a solvent amalgamation or solvent restructuring).
9.3 Save as provided under Clause 9.2, the Customer may not terminate the Service Agreement prior to the Completion Date. Where a substantial portion of the Services has been carried out, the Customer will be liable to pay all remaining portion of the Service Fee to the Company despite any purported termination of the Service Agreement by the Customer.
9.4 Upon termination each Party will immediately:
- return all properties of the other Party (including all equipment, materials and tools provided by the other Party and all documents, data and information provided by or relating to the other Party) in its possession or under its control to the other Party; and
- irretrievably delete any Confidential Information of the other Party (on whatever media and wherever located), including any business contacts or customers lists.
9.5 Termination or expiry of the Service Agreement will not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Service Agreement or these Terms which existed at or before the date of termination or expiry. In the event that the Service Agreement is terminated by the Company pursuant to Clause 9.1, the Customer remains liable to pay the Service Fee for all work done by the date of termination.
10.1 The Customer undertakes not to, during the Service Period and for a period of twelve (12) months after the expiry of the Service Period (or after the date of termination of the Service Agreement pursuant to Clause 9, if earlier), either on its own behalf or on behalf of any other person, directly or indirectly:
- solicit, entice away, or endeavour to solicit or entice away, any employee of the Company, or induce any employee or contractor to leave the employment or engagement by the Company;
- interfere or seek to interfere with the continuance of supplies to the Company (or the terms relating to such supplies) from any suppliers who have been supplying services or goods or materials to the Company;
- engage or retain the service of any employee of the Company for any work, business or activity that is similar to, or competes with, or may reasonably be expected to compete with the business of the Company; or
- canvass, solicit or approach, or caused to be canvassed, solicited or approached any client or customer of the Company;
unless with the prior written consent of the Company.
10.2 The Customer acknowledges and agrees that:
- each restriction under Clause 10.1 is in the circumstances reasonable and necessary to protect the legitimate business interest of the Company, including the Company’s interest in protecting Confidential Information, its relationship with its customers, suppliers, employees and contractors, and the goodwill in the Company’s business;
- damages (i.e. monetary compensation) may not be adequate remedy for the Company if the Customer is in breach of any restriction under Clause 10.1, and the Company may take legal action to restrain the Customer from continuing any action that is in breach; and
- this clause survives the expiry or termination of the Service Agreement.
11. Force majeure
Neither Party will be in breach of the Service Agreement or these Terms, nor liable for delay in performing, or failure to perform, any of its obligations under the Service Agreement or these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance will be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one (1) month, the Party not affected may terminate these Terms by giving written notice of one (1) week to the affected Party.
12. Assignment and other dealings
Neither Party may without the prior written consent of the other Party assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Service Agreement and these Terms.
No variation of the Service Agreement will be effective unless it is in writing and signed by the Parties (or their authorised representatives). The Company reserves the right to amend these Terms from time to time, but should we choose to do so, we will notify you the amendments prior to the amendments becoming effective.
No failure or delay by a Party to exercise any right or remedy provided under the Service Agreement or these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
15. No partnership or agency
15.1 Nothing in the Service Agreement nor these Terms is intended to, or will be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
15.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
16. Entire agreement
16.1 The Service Agreement together with these Terms constitute the entire agreement between the Parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each Party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Service Agreement or these Terms. Each Party agrees that it will have no claim for innocent or negligent misrepresentation based on any statement in the Service Agreement or these Terms.
17.1 If any provision of the Service Agreement or these Terms is or becomes invalid, illegal, or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision will be deemed deleted. Any modification to or deletion of a provision under this clause will not affect the validity and enforceability of the rest of the Service Agreement or these Terms.
17.2 If any provision of the Service Agreement or these Terms is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.1 All notices required or permitted by the Service Agreement or these Terms will be in writing and in the English language, and will be sent to the recipient by hand, by courier, by registered post, by fax or by email at its address set out above (or such other address as notified by the recipient to other parties from time to time), or as otherwise directed by the recipient by notice given in accordance with this clause.
18.2 Notices will be deemed to have been duly given and received:
- if delivered by hand or sent by courier, notice will be deemed given on the date of receipt;
- if sent by registered post to an address in the same country, on the second (2nd) business day after posting; or if sent to an address not in the same country, on the fifth (5th) business day after posting;
- if sent by facsimile, upon issue of a report confirming successful transmission to the sender; or
- if sent by email, one (1) hour after the email is sent (unless a return email is received by the sender within that period stating that the addressee’s email address is wrong or that the message cannot be delivered).
19. Right of third parties
The Service Agreement is personal to the parties. The provisions of the Contracts (Rights of Third Parties) Ordinance (Cap 623) do not apply to the Service Agreement. No person who is not a party to the Service Agreement (whether or not such person is named, referred to, or otherwise identified, or form part of a class of persons so named, referred to or identified in the Service Agreement) will have any right under the Contracts (Rights of Third Parties) Ordinance to enforce the Service Agreement or these Terms, or to enjoy the benefit of any provision or term thereof.
The Service Agreement may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute one agreement.
21. Governing law
The Service Agreement and these Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region.
22. Dispute resolution
The courts of the Hong Kong Special Administrative Region will have non-exclusive jurisdiction to deal with any dispute arising out of or in connection with the Service Agreement and these Terms, including any question regarding their existence, validity or termination.
If you have any question about the Service Agreement or these Terms, please contact us at [email protected]