1.1 Functioneight Limited is hereinafter referred to as ‘F8’.
1.2 These Terms of Engagement are the Terms of Engagement referred to in, the Proposal, Contract or any other documents (this “Agreement”) signed, acknowledged and agreed by the Client.
2. CONFIDENTIAL INFORMATION
2.1 Both Parties agree not to disclose at any time any confidential information, which becomes known to either Party as a result of this Agreement, unless required by law, by any court of competent jurisdiction, or by any official regulatory body provided that the Party required to disclose shall notify the other Party of such expected disclosure as soon as possible.
3. DURATION OF AGREEMENT
3.1 The appointment of F8 shall commence from the date of receipt by F8 of the original copy of the signed acceptance of this Agreement from the Client. In the event that this Agreement is for a fixed term or fixed price project then the agreement shall terminate when F8 has completed the Services. In the event that this Agreement is for an ongoing rolling Service, then at the beginning of each financial year the agreed fees for the Services will be automatically be revised in alignment with any issued changes in the standard F8 Retained Package Rates, as referred to in 4.3 below and as circulated to all clients as and when modified.
3.2 In the event of the failure of the Client to comply with any of his obligations under this Agreement, or upon the occurrence of any circumstances beyond the control of F8 which impede the carrying out by F8 of the Services, F8 may upon not less than 7 days’ notice in writing to the Client terminate this Agreement. It is hereby agreed that non-payment or unreasonably delayed payment of agreed fees shall entitle F8 to terminate this agreement.
3.3 In the event of the failure of F8 to comply with any of its obligations under this Agreement, or upon the occurrence of any circumstances beyond the control of the Client which prevent the Client progressing or completing the Project, the Client may upon not less than 30 days’ notice in writing to F8 terminate this Agreement. F8 shall be entitled to payment of fees and expenses properly incurred by F8 in carrying out work under this Agreement prior to termination of this Agreement under the provisions of this Clause 2.3.
3.4 Any termination of this Agreement shall not prejudice or affect the accrued rights or claims of either party to this Agreement.
3.5 In the absence of any default either party may terminate this Agreement on 90 days written notice to the other party.
4.1 The Services to be provided by F8 pursuant to this Agreement shall be as described in the Proposal, Contract or other documents signed by the Client and F8.
5. CARE AND DILIGENCE
5.1 F8 shall exercise reasonable skills, care and diligence in the discharge of the services.
6. ALTERATION OR MODIFICATION TO SERVICES
6.1 If, at any time after the commencement of F8’s appointment, any of the Services whether completed by F8 or in progress shall require to be modified or revised by reason of clear written instructions from or on behalf of the Client, or by reason of circumstances which could not reasonably have been foreseen by F8, then the Client shall make such additional payment to F8 for making any necessary modifications or revisions as shall be agreed between F8 and the Client, before such additional work is carried out.
6.2 Any Services to be provided by F8, which are not specified in this Agreement, shall be paid at the hourly charge out rates details in the Payment Schedule unless otherwise agreed in writing between the Parties. The terms and conditions of this Agreement apply to such additional services in the absence of any further agreement.
6.3 The hourly charge rates referred to above (and tabled in the appendices of this Agreement) will be reviewed annually at the start of the financial year (April 1st). If said rates are amended in any way then they will automatically become applicable to this contract from the start of the financial year.
7. CLIENT INFORMATION & INSTRUCTIONS
7.1 The Client shall supply to F8, without charge and in such reasonable time as not to cause delay or disruption to F8 in the performance of the Services, all necessary and relevant data and information required for the performance of the Services
7.2 The Client shall give his final decision or instruction on all matters properly referred to him for decision or instruction by F8 in such reasonable time as not to cause delay or disruption to F8.
8. GOVERNING LAW AND SETTLEMENT OF DISPUTES
8.1 This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns. This Agreement is construed and governed by the laws of Hong Kong without reference to the conflict of law principles. The Parties agree to attempt to resolve any dispute or difference arising from this Agreement amicably, failing which all disputes arising in connection with this Agreement shall be finally settled by competent courts in Hong Kong.
9. INTELLECTUAL PROPERTY
9.1 F8 retains the intellectual property rights to the Software, Trademark and any other intellectual property used and/or developed in the performance of Services to the Client. Subject to terms and conditions separately agreed upon by the Parties in writing, F8 may grant the Client a limited right to use the Software (“Development License”). The Client is under no circumstance entitled to obtain the program (source) code to Software.
9.2 Any licenses for the Client to use F8 intellectual property shall be expressly specified in the documents constituting this Agreement.
9.3 F8 reserves the rights to make use of finished and published products in its marketing, including, but not limited to, promotion on F8 operated websites, Facebook, Twitter and other social media platforms as well as in printed media.
10. LICENSED PROGRAM
10.1 Any programs installed at the client’s office, or installed on behalf of the client at any other locations, is installed in good faith and no responsibility is accepted for its legitimacy or otherwise or for any loss or damage of any nature which may be caused by the installation or operation of said program..
11.1 Any notice required to be given under this Agreement shall be in writing and shall be deemed to have been effectively given (i) when delivered personally or by fax against a receipt, or (ii) three (3) working days after being sent by registered post, postage prepaid, in each such case addressed as follows, or to such other address as either F8 or the Client may subsequently designate by notice to the other.
Notices shall be valid when given in accordance with the contact details as specified in the Agreement.
12.1 Payment for the Services shall be made by the Client in agreed instalments. Such instalments shall constitute no more than payments on account.
12.2 Invoices are due upon presentation unless otherwise stated. Any amounts remaining unpaid at the expiry of the stated payment due date as indicated on the invoice received by the Client shall bear interest thereafter, such interest to accrue from day to day at the rate of 5% per month.
12.3 If any item or part of an item of an invoice rendered by F8 is disputed or subject to question by the Client, the payment by the Client of the remainder of that account shall not be withheld. F8 reserves the right to suspend the provision of the Services until such time as the disputed or questioned item has been agreed or determined.
12.4 If any inventory purchase made on behalf of the client has any outstanding payment amount due, then the ownership of the purchased item shall remain entirely the property of F8 until such time as full settlement has been received.
12.5 Hosting fees are payable in full in advance of the hosting period. Hosting fees are non-refundable should the client terminate the hosting within the paid period. F8 reserves the right to terminate any hosting which has not been paid by giving the client 7 prior days notice of termination. Termination of hosting will occur unless payment is received within the 7 day period. Reinstatement fees are chargeable in advance of request to reinstate the hosting once termination has occurred.
11.6 F8 reserve the right to terminate any hosting provided as part of our services to a client should any invoice, even for unrelated services, remain outstanding over 90 days
11.7 Unless otherwise stated in the agreement, all transport costs to and from the Client’s location for the purpose of meetings, demonstrations or else related to the agreement, will be charged to the client.
13. TAXES, DUTIES AND OTHER CHARGES
13.1 The amounts specified in the Payment Schedule are exclusive of any taxes, duties and charges which may be required by law. The Client shall be responsible for all such taxes, duties and charges for which it is liable as a result of this Agreement or any payment to F8.
13.2 For larger orders a 50% deposit invoice will be issued based on quoted prices prior to the order being confirmed with the vendor.
13.3 Should F8 incur any overseas Bank Charges during the payment process then these charges will be borne by the client and shall be re-invoiced at cost in the next invoice.
14. WEB MAINTENANCE
14.1 The hours specified in the contract or otherwise agreed upon can be accumulated on a three month rolling basis. After three months any unused hours will be forfeited.
14.2 The use of carried forward hours in the three month rolling period is subject to F8’s work schedule. The client cannot expect accumulated hours to be utilized with short notice.
14.3 The hours specified in the contract or otherwise agreed upon are priced according to F8’s current price schedule and can be adjusted by F8 with one month’s notice.
14.4 No refund, discount or rebate will be given for hours not used.
15.1 The Client hereby warrants that it, shall not employ either directly or indirectly any person who has worked for F8 for a period of two years from the completion of all services by F8 for the Client and vice versa. This applies equally to any of the Client’s subsidiaries or any organization forming part of the same group as the Client and vice versa. The Client also warrants that it will not enter a contract with a service provider with the knowledge that the service provider has hired and intends to utilise a F8 ex member of staff to service the Client as part of that agreement from a period of two years from the completion of all services by F8 for the Client.
16. LIMITATION OF LIABILITY AND INDEMNITY
16.1 The Client hereby undertakes to indemnify and hold harmless F8 and all its officers, employees, contractors and agents against any loss, cost, damage or expense which any of them may sustain or incur by reason of F8 having entered into this Agreement or providing the Services hereunder. Neither F8 nor its officers, employees, contractors or agents shall in the performance of this Agreement be liable to the Client or to any other person for any act or omission, negligent, tortious or otherwise.
16.2 F8’s liability under this Agreement shall be strictly limited to loss and damages directly caused by the willful misconduct or gross negligence of F8 and such compensation shall be capped at the amount of the service fees received by F8 from the Client under the affected Services. F8 shall in no event be liable for indirect or consequential loss of the Client.
16.3 F8 and the Client each acknowledge that the provisions of this Clause are reasonable and that had they not been included herein F8 would not have entered into this Agreement.