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IF YOU DO NOT AGREE TO THESE TERMS OF BUSINESS SERVICES, IMMEDIATELY STOP USING THE PLATFORMS AND DO NOT USE ANY SERVICES OFFERED THROUGH THE PLATFORMS.
1.1. The Company provides a non-exclusive, revocable, non-sublicensable and non-transferrable right to use the software programs, functionalities, processing and technologies of any module of our Platforms (“Systems”), together in each case with any related Business Services (as defined below). By Using our Business Services, a Business User (as defined below) acknowledges and agrees to be bound by our Privacy Policy, the Terms and Conditions, the Terms of Purchase , and the following terms of business services (“Terms of Business Services”) and/or any services made available to a user of the Platforms who has signed any contract, quotation, registration form or service order form (hereinafter singly or collectively referred as the “Service Agreement(s)”) (hereinafter collectively referred as the “Agreement”) with us or upon acceptance of any free trial offer for using any modules of the Systems and/or any related services (“Business User(s)”) (“Business User(s)” hereinafter refers to individuals and/or entities accessing and/or using the Systems and Business Services at any location and for any reason or purpose). In the event of any conflict among the terms of the aforesaid documents, the following descending order of precedence shall apply:- (i) the terms and conditions of the Service Agreements; (ii) Privacy Policy; (iii) the Terms of Business Services; and (iv) the Terms and Conditions/Terms of Purchase.
1.2. If a Business User does not agree to these terms of the Agreement, then he/she must not use our Platforms and Systems.
1.3. The Company shall have the exclusive right to substitute, remove, modify, enhance or upgrade part or all of the components and modules of the Systems at any time at its absolute discretion without any notice to the Business User who shall have no right to object to such substitutions, removals, modifications, enhancements and/or upgrades made to the Systems provided that: (i) the Company gives to the Business User reasonable notice of any changes that may materially affect the normal use of the Systems; and (ii) such substitutions, removals, modifications, enhancements and/or upgrades will not deprive the Business User of the standard features and functionalities of the Systems as at the commencement date of the Business Users use of the related module(s) of the Systems.
2.1. Every time you wish to use our Platforms and Systems, please check these Terms of Business Services to ensure you understand the terms that apply at that time. We reserve the right to make changes to these Terms of Business Services from time to time without providing any prior notification. The amended Terms of Business Services are effective from the date they are published on our Platforms. Business Users are advised to visit our Platforms periodically to review the latest Privacy Policy, the Terms and Conditions, the Terms of Purchase and Terms of Business Services. The Business User’s continued use of the Platforms and Systems after changes of the Terms of Business Services have been made, constitutes the Business User’s acceptance of the revised Terms of Business Services. A User’s access to our Platforms and Systems will be terminated upon the Business User’s notice to us that any change is unacceptable; otherwise the continued use shall constitute acceptance of all changes and the said changes shall be binding upon the Business User.
3.1. The Company shall, during the applicable subscription term, provide and make available to the Business User the Business Services, as subscribed for by the Business User as per the Service Agreement, with reasonable skill and care 24 hours a day, seven days a week, except for: (a) a planned maintenance carried out during the maintenance window of e.g. 10pm to 7am Hong Kong Time; and (b) unscheduled maintenance performed outside normal business hours.
3.2. The undertaking by the Company as set out above shall not apply to the extent of any non-conformance which is caused by use of the Business Services contrary to the Company’s instructions, or modifications or alterations of the Business Services other than by the Company or its duly authorised contractors or agents. If the Business Services do not conform with the foregoing undertaking, the Company will use reasonable endeavours to correct any such non-conformance promptly, or provide the Business User with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Business User’s sole and exclusive remedy for any breach of the undertaking as set out above.
3.3. Notwithstanding the foregoing, the Company: (a) does not warrant that the Business User’s use of the Business Services will be uninterrupted or error-free or that the Business Services will meet the Business User’s requirements; (b) it is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Business Users acknowledges that the Business Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and (c) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the defective or negligent performance of services provided by third parties or any willful misconduct by third parties in relation to the provision of the Business Services.
3.4. The relevant content posted, uploaded or shared by the Business User or by any party authorized by the Business User using the Systems will be published on the Platforms which have been authorized by the Company to display such relevant content and in connection with the provision of advertisements, special offers, commercial information, promotional and marketing materials, promotional campaigns and/or hosting special events and/or any other services which are made available via the Platforms. The Company will use its reasonable efforts to ensure that sufficient capacity is maintained on its computer facilities to enable the Business User to use and access the Systems; and users of the Platforms to access the Platforms.
4.1. The Business User agrees to pay the applicable subscription fee, subject to the relevant subscription schemes as per the Service Agreement. For the subsequent periods during the subscription term, if the Company has not received payment within the first five (5) business days of the new subscription period, and without prejudice to any other rights and remedies, the Company may, without liability to the Business User, disable the Business User’s password, Account (as defined in clause 5.2 (a) in the Terms and Conditions) and access to all or part of the Business Services. However, the Business User shall still be able to use the Platforms as a normal User. The Company shall be under no obligation to provide any or all of the Business Services, while the subscription fee concerned remain unpaid.
4.2. Upon payment of the subscription fee to the Company or upon acceptance of any free trial promotion offer, the Business User will be entitled to use the Company’s Business Services.
4.3. The subscription fee and other charges payable are non-cancellable, non-refundable and exclusive of any applicable taxes which shall be payable by the Business User at the rate and in the manner prescribed by law. All payments by the Business User shall be paid without set-off or counterclaim, free and clear of and without deduction or withholding for or on account of any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, imposed by any relevant jurisdiction ( by any department, agency or other political subdivision or taxing authority thereof), and all interest, penalties or similar liabilities with respect thereto (“Taxes”). Unless deduction or withholding of such Taxes is required by law, in which event the Business User shall pay such additional amount as shall be required to ensure that the net amount received by the Company will equal the full amount which would have been received by them had no such deduction or withholding been made.
4.4. The Company reserves the right to change the service fee or institute new charges or fees to be paid by the Business Users for using the Platforms as it deems appropriate.
4.5. In the event that the Company decides to remove any paid advertisement or paid services for any reasons not relating to any breach of law or the provisions herein, the Company may, after deducting the fees charged for the period that the advertisement has been posted on the Platforms or that the service has been provided, refund the remaining fees (if any) to the related Business User in accordance with the Agreement without prejudice to the Company’s rights and remedies hereunder.
5.1. The rights of the Business User and its Business Location (as defined in the Terms of Purchase) to use any of the Business Services which is non-exclusive, revocable, non-sublicensable and non-transferable, are effective from the date as stipulated in the Service Agreement and will be terminated on the expiry of the service period as stipulated in the Service Agreement or upon termination in accordance with the terms of thereof , whichever is earlier (“Term”). In case of any free trial of any module of the System offered to the Business User without executing any Service Agreement, the Term shall be determined at the sole discretion of the Company.
6.1. The Business User agrees to use its best effort to display the promotional materials provided by the Company at the Business Locations for promoting the Business Services used by the Business Locations.
7.1. The Company may offer additional features and functionalities for the Business User (“Additional Solutions”) via the Systems. The use of any of the Additional Solutions will also be subject to the Agreement (and in particular, the Terms of Business Services) and may require the Business User to agree to additional terms and conditions specific to those Additional Solutions which may be incorporated into the Agreement.
8.1. The Business User represents, warrants and undertakes that:
8.2. The Business User will promptly inform the Company of any action or event of which it becomes aware that has the effect of making inaccurate, any of the Business User’s representations or warranties as set out in Clause 8.1 above.
8.3. The Business User shall ensure that only the Authorized User(s) who have been properly trained may log into the Systems, and that the Authorized User(s) shall use the Systems in accordance with the service guidelines as may be provided by Company from time to time during the Term.
8.4. The Business User shall maintain and procure all Related Parties to maintain the confidentiality of the username (“Username”) and password (“Password”) required to access the Systems.
8.5. The Business User is solely responsible for any use of, action taken and transactions that occur under the Username and the Password.
8.6. The Business User shall promptly notify the Company of any changes in information about the Business Location in accordance with the terms of the Agreement.
8.7. The Business User and the Business Location shall fully comply with applicable trade regulations, e.g. Trade Descriptions Ordinance (Cap. 362 of the laws of Hong Kong), and all other applicable laws to ensure that the information/content uploaded to the Systems is true, legal, valid, up-to-date, accurate, not misleading and not infringing any third party’s intellectual property rights.
8.8. The Business User shall not upload or submit to the Systems any unlawful or inappropriate content, such as content related to sale of any potentially hazardous food, tobacco product or any other item prohibited by any applicable law.
8.9. The Business User agrees that the Company shall have the right to pre-screen and approve content of any Tickets, Tokens and/or Coupons (as defined in Clause 9 of the Terms and Conditions) (“ES Product”) and materials provided with the Systems before they are published on any Platforms. The Company shall have the rights to pre-screen, refuse and/or remove from the Systems and/ or the Platforms any content that violates any term of the Terms and Conditions or the Agreement or any applicable laws or regulations.
8.10. The Business User shall promptly notify the Company of any malfunction, error or defect in the Systems and provide the Company with a list of output and any other data that the Company may request in order to reproduce conditions similar to those present when such error, defect or malfunction occurred.
8.11. The Business User shall maintain procedures to facilitate the reconstruction of any lost or altered files, data or computer software, and the Merchant agrees that to the fullest extent permissible under the law, the Company will not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs.
8.12. The Business User shall ensure maintenance and renewal of all the licenses and permits which are required in connection with the business operation of the Business Locations to comply with all the applicable laws and shall ensure that the Business Locations shall provide services and products in strict compliance with all the applicable laws, regulations and standards.
8.13. The Business User agrees that the Company may disclose or publish the name, address(es) and telephone number(s) of the Business User and/or the Business Locations, and materials which are not of a confidential nature provided by the Business User and/or the Business Locations for promoting the Business Services.
8.14. The Business User shall not resell or assign, subcontract or attempt to resell or assign or subcontract the Business Services to any parties without the prior written consent of the Company.
8.15. The Business User shall not alter, reproduce, adapt, distribute, publish, reverse engineer, compile or attempt to create any source code that is derived from the Systems.
9.1. This paragraph shall be applicable to Business Users who use our Business Services in relation to the offer, sale and redemption of ES Products (the “Transaction Module”).
9.2. The Business User and the Business Location shall provide and fulfill the terms of their services/products and/or the terms of any ES Products which is uploaded to the Systems for publishing on the Platforms in accordance with the terms of the Agreement and the Business User shall be solely responsible for and bear all risks relating to the transactions.
9.3. The Business User is responsible for any act or omission of any designated Business Location in connection with the use of any offer, sale and redemption of ES Products (“Redemption Location”), including and without limitation: (a) any failure by any Business Location and/or the Redemption Location to honor any ES Products; or (b) the imposition of any terms and conditions on any ES Products including quality, safety, usability or any aspect of the products and/or services provided by the Business Location and/or Redemption Location that violates any applicable laws or regulations. The Transaction Module of the System enables the Business User to, directly or through third-party links, offer and sell ES Products to Users of the Platforms, by accepting credit cards, debit cards and other payment methods (“Payment”) via payment processing services operated by third-party vendor/service provider(s) (“Payment System Provider”) made available on the Platforms or on the sites as linked through third-party links (“Transaction Service”). An ES Product entitles the holder of an ES Product to redeem services and/or products for use at a certain Redemption Location as per the specific terms of the ES Product as displayed on the Platform or on the sites as linked through third-party links when an ES Products is purchased (“Conditions”).
The Transaction Module of the System enables the Business User to, directly or through third-party links, offer and sell ES Products to Users of the Platforms, by accepting credit cards, debit cards and other payment methods (“Payment”) via payment processing services operated by third-party vendor/service provider(s) (“Payment System Provider”) made available on the Platforms or on the sites as linked through third-party links (“Transaction Service”). An ES Product entitles the holder of an ES Product to redeem services and/or products for use at a certain Redemption Location as per the specific terms of the ES Product as displayed on the Platform or on the sites as linked through third-party links when an ES Products is purchased (“Conditions”).
9.4. The Business User shall ensure that the Conditions provided through the Systems, including but not limited to the selling price, discounted price, conditions of use, validity period, detailed descriptions of services and/or products to be redeemed with the ES Products etc. are true, valid, up-to-date, accurate and not misleading and that the Business User or the Redemption Location shall provide the holder of the ES Products with the services and/or products according to the Conditions. The Business User agrees to indemnify and hold harmless the Company, its subsidiaries, its affiliates, its officers, directors, employees, agents, partners, representatives, shareholders and servants against any claims, actions, demands, liabilities, losses, damages, costs and expenses on a full indemnity basis arising from or resulting from the Business User’s breach of this Clause.
9.5. Materials submitted/uploaded by the Business User to the Systems for creating ES Products are subject to the Company’s subsequent scrutiny and approval at all times. The Business User shall, if required by the Company, change, modify or remove the materials submitted/uploaded to the Platforms. The Business User agrees that the Company, in its sole discretion, shall remove any materials submitted/uploaded by the Business User to the Platforms.
9.6. All Payments are subject to processing by the Payment System Provider and the relevant paying banks of the Users who have purchased the ES Products. The Company shall not be liable in any way if the Payment System Provider or the paying bank refuses to process or accept any Payments for any reason.
9.7. The Business User and/or the Redemption Location are solely responsible for providing the holder of the ES Products with such services and/or products pursuant to the Conditions in accordance with the terms of the Agreement, and to deal with any claims or any issue arising from the use of the ES Products.
9.8. Upon termination of the Agreement governing the use of the Transaction Service (“Termination”), the rights and obligations of the Business User, the Redemption Location, the Company and the User with respect to ES Products for which Payments have been made before the Termination will survive the Termination until the obligations of the said parties have been fulfilled.
10.1. This paragraph shall be applicable to Business Users who access or use the online payment module or online payment (Integrator) module of the Systems. By accessing or using the online payment module or online payment (Integrator) module of the Systems, the Business User acknowledges that he/she/it has read, understood and accepted these Terms of Business Services (as may be amended by the Company from time to time) as well as any applicable terms and conditions by the Payment System Provider and agrees to be bound by them.
10.2. In respect of any payment processed via the Platform, the Business User agrees and acknowledges that:
Upon request by the Company for investigation of any potential fraud or suspicious unauthorized payment; or in case if there are any disputes raised by the related User regarding the Payment, the Business User shall comply with the following requirements:
10.3. Upon request by the Company for investigation of any potential fraud or suspicious unauthorized payment; or in case if there are any disputes raised by the related User regarding the Payment, the Business User shall comply with the following requirements:
11.1. The Business User shall at all times properly protect all personal data provided by the Company or otherwise collected through the Systems or the Business Services in accordance with the applicable laws and shall at all times comply with the requirements of the Personal Data (Privacy) Ordinance (Cap. 486 of the Laws of Hong Kong) and similar applicable laws or regulations of other countries where the Business User and/or its Business Locations may be located at otherwise that they are subject to.
12.1. The Company shall be excused from and in no event be liable for any delay or failure to provide any Business Services performance under the Agreement, to the extent it or a Business User is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (i) weather conditions or other elements of nature or acts of God; (ii) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (iii) quarantines or embargoes; (iv) labor strikes; (v) error or disruption to major computer hardware or networks or software failures; or (vi) other causes beyond the reasonable control of the Company or a Business User, as applicable (“Force Majeure Event”).
12.2. If a delay or failure of the Company to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of Company’s obligations will be suspended accordingly.
13.1. The Company is the owner or the licensee of all intellectual property rights on the Systems and/or Platforms (including all copyright, patents, trademarks, service marks, trade names, domain names, social media identifiers, designs, whether registered or unregistered) and materials, information and content on the Systems and/or Platforms or accessed as part of the Business Services, any database operated by us, all the Systems, and/or Platforms’ design, text, graphics, software, photos, video, music, sound, data, all software compilations, underlying source code and software (including applets and scripts), and all their selection, coordination, arrangement and enhancement (“Company IP”). The Company IP is protected and may not be downloaded, copied, modified, reproduced, printed or distributed in any way except that Business Users may download and/or print a copy of such materials for their own legal and non-commercial uses or for such purposes as permitted under the terms and conditions of any Service Agreement(s). The Business User undertakes that it shall not directly or indirectly infringe nor permit its Related Parties to infringe the Company IP under any circumstances. Business Users acknowledge that they will be solely responsible for any adverse consequences arising from their breach of intellectual property laws.
13.2. Without prejudice to above, the intellectual property rights in any data, logo, design, graphic and/or any other related materials owned and provided by the Business User and/or the Business Location shall vest in the Business User and/or the Business Location (“Business User IP”s).
13.3. Without prejudice to the other provisions under this Clause, the Business User further warrants and undertakes that the Company IP supplied hereunder or in connection herewith for use in the Systems and/or the Platforms does not and shall not infringe any intellectual property rights and any other right of any third party (including but not limited to any registered or unregistered trademark, patent, copyright or design).
14.1. The Business User grants the Company a non-exclusive, worldwide, royalty-free right and licence to use, publish, host, display, adapt, modify, promote, copy, download, sub-license, forward, distribute, reproduce, transfer and/or edit materials and content provided to the Company and/or uploaded to the Systems by the Business User related to the provision of Business Services, including without limitation, for marketing, promoting and redistributing and using such information for analytics in any media as the Company deems appropriate.
15.1. Without prejudice to any other rights which the Company shall/ may have under the Agreement or at law or in equity, the Company may terminate the Agreement (i) for any reason, by giving 1 month’s advance notice in writing to the Business User; or (ii) immediately by notice in writing to the Business User if the Business User is in breach of any term of the Agreement and that if such breach is capable of being remedied, such breach is not remedied within fourteen (14) days of it being notified by the Company.
15.2. Any termination (howsoever occasioned) shall not affect any accrued rights or liabilities of the Company or the Business User nor shall it affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
15.3. Clauses 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 as well as other terms which by their nature should survive, shall survive termination of the Agreement.
16.1. The Company does not warrant that the Platforms and/or Systems will operate error-free, or that the Platforms and/or Systems and the Company’s server are free of viruses or other harmful mechanisms. The Company does not accept any responsibilities or liabilities whatsoever for any network problems, system or hardware failures, mobile telephone connection problems or interferences due to third party applications or system or hardware which may result in the Business Services being affected or unavailable. If the use of the Platforms and/or Systems result in the need for servicing or replacing equipment or data, the Company shall not be responsible for those costs. The Platforms and/or Systems are provided on an "as is" (subject to any substitutions, removals, modification, enhancements and upgrades that the company may make from time to time) basis without any warranties of any kind to the fullest extent permitted by law. The Company disclaims all warranties, including, without prejudice to the foregoing, any in respect of merchantability, non-infringement of third-party rights, fitness for particular purpose, or about the accuracy, reliability, completeness or timeliness of the Platforms and/or Systems.
17.1. As permitted by applicable law, in no event shall the Company, it subsidiaries, its affiliates or any of its respective employees, officers, directors, agents, merchants, partners, third-party content providers or licensors, or any of their officers, directors, employees, or agents, be liable for any direct or indirect lost profits or lost business damages, indirect, incidental, special, consequential, or punitive damages arising out of, related to, or in connection with the Company’s performance of this Agreement and/or any of the following: (a) the Business User’s inability to use the Platforms and/or Systems; (b) modification or removal of content posted, uploaded or shared on the Platforms by the Business User; or (c) any improper use of information the Business User provides to the Platforms and/or Systems, including without limitation, any personal information. The aggregate liability of the Company to any Business User for all losses, claims and expenses arising from their use of the Business Services and/or the Platforms/Systems shall in no event exceed the total fees paid by the Business User to the Company in a calendar year. Nothing in the Agreement shall operate to exclude or restrict any party’s liability for death or personal injury resulting from negligence or fraud.
17.2. As permitted by applicable law, in no event shall the Company, its subsidiaries, its affiliates or any of its respective employees, officers, directors, agents, merchants, partners, third-party content providers or licensors, or any of their officers, directors, employees or agents, be liable for any (direct or indirect) losses, claims, damages, demands or actions directly or indirectly arising out of any visit or non-visit to the Business Location/Redemption Location by any Users, any Users’ use of services and/or products provided by the Business User and/or Business Location/Redemption Location, nor liable or responsible for or be obliged to get involved in any disputes between the Business User and/or Business Location and any parties arising out of or in the connection with the use of any Business Services and/or the sale of any goods or services or ES Products offered and sold by the Business User and/or the Business Location. The Business User confirms that it has not relied on any representation made by the Company which has not been stated expressly in the Agreement or upon any descriptions, illustrations or specifications contained in any document, including without limitation of catalogues or publicity matter produced by the Company.
18.1. The Business User agrees to indemnify, and hold harmless the Company, its subsidiaries or affiliates, and its officers, directors, employees, agents, partners, representatives, shareholders, servants, attorneys, predecessors, successors and assigns from and against any claims, actions, demands, liabilities, losses, damages, costs and expenses (including legal fees and litigation expenses on a full indemnity basis) arising from or resulting from: (a) a breach of obligations under the Agreement by the Business User; (b) any willful, unlawful or negligent act or omission of the Business User or its related parties; (c) any breach or inaccuracy in any of the Business User’s representations, undertakings or warranties under the Agreement; (d) any action, complaint, liability or claim, including claims for personal injury, sickness, death or property damage, brought by (i) any party in connection with his/her use of any offer, ES Products and/or any other service made available on the Platforms through the Business User’s and/or Business Location’s use of the Business Services or arising from his/her consumption of any service or goods at or provided by the Business Location/Redemption Location; or (ii) any party which relates to all or any part of the data, including but not limited to leakage of data from the database or any infringement of intellectual property rights, defamation or misappropriation of trade secrets caused by any act of the business user or any of the related parties. The Business User agrees to pay, indemnify, and hold the Company harmless from any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty which arise from the Company’s provision of any service to the Business User but is not based on the Company’s income. Such taxes, fees and duties paid by the Business User shall not be considered a part of, a deduction from, or an offset against, payments due to the company under any Service Agreement.
19.1. In the event that any provision of the Agreement is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of the Agreement shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of the Agreement one or more provisions as similar in terms as may be legal, valid and enforceable under the applicable law.
20.1. The Terms of Business Services and any dispute or matter arising from or incidental to the use of the Systems and/or Platforms shall be governed by and construed in accordance with the laws of Hong Kong, unless otherwise specified.
20.2. Any dispute, controversy, difference or claim arising out of or relating to this Terms of Business Services, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
20.3. In the event of any breach of the Terms of Business Services by any one party, the other party shall be entitled to remedies in law and equity as determined by arbitration.
21.1. Except as expressly set forth herein, no person other than the parties to the Agreement shall have any right to enforce any term of the Agreement
22.1. Should there be any inconsistency between the English version and any version in other language, the English version shall always prevail
For any query, please email support@electricsoul.com.