TERMS AND CONDITIONS OF SALE

/TERMS AND CONDITIONS OF SALE
TERMS AND CONDITIONS OF SALE 2017-10-21T01:11:53+00:00

Updated October 17, 2017.

(1)  The following Terms and Conditions of Sale are legally binding on any individual user of PARKLU services and any corporation or other entity on whose behalf the services are used ( hereinafter referred to as the “Company” );

(2)  Park Lu Limited, an entity incorporated in Hong Kong whose registered office is situated at 8A Winning Center, 46-48 Wyndham Street, Central, Hong Kong ( hereinafter referred to “PARKLU” ) is an online marketing platform that provides the Company advanced tools to search and connect with influencers and execute campaigns.

IT IS HEREBY AGREED AND ACKNOWLEDGED AS FOLLOWS:

1. Definitions

a) In these Conditions, the following terms shall have the respective meanings specified below unless the context otherwise requires:

“Account” means the cost account that the Company sets up at PARKLU which allows PARKLU to charge relevant Charges from that particular account of the Company.

“Brand” means the person or entity identified in the Order, who wishes to obtain the Services provided by PARKLU.

“Company” means the person or entity placing the Order, on behalf of the Brand.

“Charges” means the charges payable by the Company to PARKLU for the Service as specified in the Order.

“Collaboration” means any content collaboration, posting or notice for the Company.

“Conditions” means these Terms and Conditions of Sale.

“Contract” means a contract for sale between PARKLU and the Company of the Services formed in accordance with Clause 4(c).

“Confidential Information” means all business, technical, financial or other information communicated or made known to the Company by PARKLU.

“Expiry Date” means the date on which the posting or publication of a Collaboration expires as specified on an Order and confirmed by PARKLU pursuant to Clause 4(c). 

“Force Majeure Event” means any event or circumstance the occurrence and the effect of which PARKLU could not reasonably prevent or avoid including: 

i. explosion, fire, flood, war, earthquake, storm or other natural disasters;

ii. war, declared or undeclared, sabotage, insurrection, terrorist or criminal acts whether online or offline, riot or civil disturbance;

iii. import or export regulations or embargo or requisition restrictions regulations or any acts or measures or any intervention of any governmental or regulatory authority;

iv. epidemic, quarantine restrictions, outbreak of disease or any travel restrictions or bans ( including bans on non-essential travel ) issued by the authorities concerned or any governmental authority;

v. strike, lock-out, work stoppage or other industrial action or trade dispute ( whether involving employees of PARKLU or any other person ); and

vi. interruption or failure of utility service such as telecommunication, network outage or internet disruptions or degradation which PARKLU cannot reasonably control.

“Influencers” means users seeking content collaborations.

“Online Payment” means payment by any one or more of the following payment modes as may be designated by PARKLU from time to time: credit card, bank transfer and other designated payment modes.

“Order” means an online order placed by the Company with PARKLU for the Services in accordance with these Conditions of this agreement.

“PARKLU” means Park Lu Limited and its affiliates Park Lu Consulting ( Shanghai ) Limited.

“Parties” means PARKLU and the Company and “Party” means any one of them.

“Platform” means an online environment provided by PARKLU which enables the Company to access the information of the Influencers and in which the Influencers can participate in Collaborations.

“Payment Processing Company” means the applicable payment or card processing entity ( including any banking institution ) for the relevant Online Payment mode.

“Service” means the service listed on the Site for which PARKLU executes Orders in accordance with these Conditions, and includes the posting and publication of Collaboration(s) on the Site.

“Service Package” means the Service Package listed on the Site for which PARKLU executes Orders in accordance with these Conditions.

“Site” means any website or mobile application owned and operated by PARKLU and its affiliates/subsidiaries.

“Subscription” means our web-based marketing applications, tools and platform that the Company has subscribed to by an Order.

“Third Parties” is defined in Clause 12(a). 

“Validity Period” means the validity period of a Subscription as specified on an Order.

“Virus” means any computer virus, Trojan horse, worm, or other disabling, intrusive, malicious, destructive, corrupting or disruptive program, macro or device or other contaminants including but not limited to any codes or instructions.

b) Words using the singular or plural number also include the plural or singular number.

c) Any reference to a “person” or “entity” includes a reference to an individual, a sole-proprietor, a partnership, an unincorporated association and a Company.

d) Any reference to a “Clause” is to a clause of these Conditions.

e) The headings in these Conditions are inserted for convenience only and shall be ignored in construing these Conditions.

f) A reference to the word “include” or “including” shall not be construed as having any limiting effect.

2. Application and Effect

a) These Conditions, together with the Terms and Conditions and Privacy Statement, shall govern the provision of Services listed at the Site by PARKLU to the Company.

b) In the event of any conflict, inconsistency or ambiguity between these Conditions, the Terms and Conditions and/or the Privacy Statement, the following descending order of precedence will apply:

i. the Privacy Statement

ii. these Conditions

iii. the Terms and Conditions.

c) By ordering the Services described on the Order, the Company agrees to be bound by and accepts these Conditions.

3. Site and Services

a) PARKLU warrants that the Platform will be of satisfactory quality and fit for its intended purpose; and the Platform will comply with all applicable laws and regulations.

b) Without prejudice to any other rights and remedies available to PARKLU under the Agreement or otherwise, PARKLU reserves the right from time to time, with prior notice of 3 days and without any liability or consent, to change, modify, suspend, withdraw or cease to make available any or all Services from the Site or the whole or any portion of this Site, or to revise its prices or specifications of any Service at any time, for any reason, at its sole discretion, provided that any Order which has already been made by the Company shall be duly executed in accordance with its terms.

c) PARKLU reserves the right to remove any messages which breach the terms of this agreement or which bring PARKLU or its name or reputation into disrepute without notice.

d) PARKLU will use reasonable endeavours to ensure that the Platform is available 24/7, whilst PARKLU shall have no liability to the Company if the Platform is unavailable or interrupted for any reason that is not caused by PARKLU.

e) PARKLU is not obligated to monitor the messages sent and received via its own Platform and shall not be liable to the Company owner whether in contract, tort ( including negligence ), wrongful act or otherwise for any messages sent or received via the Platform, but shall take down any publicly visible messages as the Company may reasonably request. 

4. Orders

a) The Company shall indicate the Service Package and Subscription it wishes to order, at the price and in the currency published on the Order, and to provide all required information during the check-out of the Order(s). The Company warrants and undertakes that all information provided to PARKLU is complete, true, accurate and up-to-date.

b) All Orders made by the Company for one or more Service(s) shall be deemed to be an offer made by the Company to purchase such Service(s) upon the terms of these Conditions and for the selected Service(s) set out in the Order.

c) Upon successful submission of an Order by the Company and confirmation receipt of the respective Order(s) by PARKLU, a Contract will be formed between the Parties upon the acceptance of the terms set out in accordance with the Conditions.

5. Price & Payment

a) Unless otherwise stated on the Site, all prices for Service(s) and Subscription(s) shown are in Chinese Renminbi and all payout for the final Order(s) to PARKLU shall be made in Chinese Renminbi or in Hong Kong Dollars. If a credit card used to pay for the Subscription or Service is based on a different currency, the final price charged will be subject to exchange rate calculated by your issuing bank on the day of payment made.

b) Unless otherwise agreed by PARKLU in writing, payment for the Services shall be made by the Company in full via the Company’s valid Online Payment service and in accordance with the Order.  The Company is responsible to pay in full amount of the Subscription and is non-refundable in whole or in part in the event of cancellation or termination for any reason  that is not caused by PARKLU.

c) PARKLU shall not be liable for any errors in the pricing or specification of Services ordered by the Company that may appear at the Site.

d) The Charges do not include any duties, taxes or similar imposts.  The Company shall pay for any all applicable duties, taxes or similar imposts which may from time to time be imposed on, or in relation to, the Service, any payment for the Service.  If at any time an applicable law obliges the Company to make a deduction, withholding or payment in respect of taxes from any payment in relation to the Service, any payment for the Service, the Company shall indemnify and keep PARKLU fully and effectively indemnified from and against such deduction, withholding or payment by paying PARKLU at the time that payment to PARKLU is due. 

e) All Online Payments are subject to processing by PARKLU’s payment service provider, the approval of the Payment Processing Company and the relevant paying/issuing bank. PARKLU shall not be liable in any way if the payment service provider, Payment Processing Company or the paying/issuing bank refuses to process or accept any Online Payment particulars for any reason.

f) The Company agrees to submit such Online Payment or card information and other information as may be reasonably required by PARKLU or its payment service provider to process the Order including payment for the Order(s), and to arrange for invoicing. All card information will be received and processed directly by the payment service provider of the Company, and PARKLU will not retain any card information. All information received and accessed by PARKLU shall be subject to PARKLU’s Privacy Statement. The Company agrees that PARKLU shall not be liable for any loss, damage, or liability in the event of any unauthorized disclosure of such information by its payment service provider.

g) PARKLU reserves the right to exercise its lawful remedies if a dispute or issue arises over Online Payments, or if it does not receive full payment for an Order. In particular, but without limitation to any other remedies, if the Payment Processing Company or the paying bank rejects or reverses payment for an Order, or if PARKLU does not receive full payment for an Order. PARKLU shall have the right in its sole discretion to:

i. reject such Order;

ii. suspend or terminate the provision of Services specified in such Order; and/or

iii. debt recovery claim against the Company for the full amount of the Order .

h) The Company agrees that PARKLU shall be entitled ( without any obligation to deliver prior notice to or obtain consent from the Company ) to set-off and deduct from any amounts due to the Company in a Service Package or Subscription, all sums owed by the Company to PARKLU under any and all Contracts and any other agreements.

6. Service Packages and Subscriptions

a) A Service Package or Subscription must only be used by the Company and/or the Brand and for the Brand only. The Company shall not apply its Service Package or Subscription for the benefit of any other Company, including any subsidiary or related corporation of the Company or the Brand. Sharing, reselling or transfer of a Subscription is strictly prohibited, except with the written consent of PARKLU. PARKLU reserves the right to terminate the Service Package and Subscription immediately without liability or refund, in the event where there is a breach of this Clause 6(a).

b) PARKLU is entitled to offer different subscription terms and fees from time to time.  PARKLU is also entitled to vary the Charges of the Subscription fees.  For any Order which has already been made by the Company, the applicable subscription terms and fees shall be those in effect as of the date that such Order was made.

c) Unless otherwise specified by PARKLU, the Company shall pay the Subscription fees prior to the commencement of the Validity Period.

7. Termination and Cancellation Policy

a) The Subscription fees are non-refundable except as expressly set forth below.  PARKLU shall notify the Company by email of renewals. 

b) The Company agrees that PARKLU shall have the right to renew all Subscriptions on the same terms and conditions unless the Company notifies PARKLU in writing of its wish to not renew its Subscription at least 15 days before the end of the Validity Period. The renewal shall be performed in accordance with the manner of payment originally chosen by the Company and shall authorize PARKLU to take payment for such Subscription at the price rate to which the Company originally agreed and by using any valid payment source retained in the record.    

c) The term of this Agreement shall commence on October 14, 2017, and shall expire on January 13, 2018, unless earlier terminated by the Company upon thirty ( 30 ) days written notice to PARKLU.  Upon the expiration or earlier termination of this Agreement, the terms herein shall continue to apply to any Order placed pursuant to this Agreement prior to such expiration or termination, until such Order has been successfully executed.

8. Collaborations

a) The Company shall only be permitted to submit, upload or publish Collaborations on the Site for the Brand and no other person or entity.

b) The Collaboration will be published on the Site until the Expiry Date, unless in any case where the Collaboration is removed, suspended or terminated by PARKLU in accordance with its rights under these Conditions. The Company understands and agrees that PARKLU has no control over any site other than the Site and shall not in any event be responsible or held liable for any expired Collaborations which appears on any site other than the Site.

c) At any time before the Collaboration, the Company is required to pay for the Charges to be incurred in relation to the Collaboration.  PARKLU is also entitled to in its absolute discretion vary its requirement for the Charges under this Clause 8(c) at any time.

d) The Company is entitled to a credit of the Charges if the invitation request from the Company has been sent out to the selected Influencer(s) and the Collaboration request is cancelled at least seven (7) calendar days prior to the commencement of the Collaboration, the said Charges will be credited to the Company’s Account. 

e) Notwithstanding of Clause 8(d), if the Influencer(s) have accepted the invitation request from the Company, the Company is not entitled to make any cancellation and the Charges will not be refundable.

f) In the event that no payment for the Charges received from the Company and the Company cancels the Collaboration request in less than seven (7) days prior to the commencement of the Collaboration, the Company’s Subscription will be automatically suspended.

g) If the Influencer(s) fail to complete the requested Collaboration partly or fully, the Charges paid by the Company may be partially or fully credited to the Company’s Account.

h) Full payment of the Collaboration has to be paid prior to the commencement of the Collaboration. Late payment of more than 30 days will be charge a late fee of 5% of the total outstanding amount after 10 days each until payment is settled.

i) The Company undertakes to ensure that its Collaboration(s) complies with all applicable laws, regulations, guidelines or policies.

j) Without limiting the generality of Clause 8(i), the Company shall ensure, represent and warrant that:

i. all information contained in a Collaboration is true, complete, accurate and not misleading in any manner whatsoever;

ii. the contents of any Collaboration, including any Company trade mark or logo or graphics or other materials included in the Collaboration, does not infringe or violate any applicable laws and regulations, the intellectual property rights or proprietary rights of a third party; and

iii. any links included in its Collaboration(s) leads to its website and that it will not include any links to third party websites in its Collaboration.

k) By submitting, uploading or publishing a Collaboration on the Site, the Company warrants and agrees that:

i. it is authorized to submit, upload and publish the Collaboration(s) on the Site, and that it has obtained and will maintain all necessary approvals, licences and consents required for the submission, uploading and publication of the Collaboration(s) on the Site;

ii. all information, materials and attachments submitted through the Site or otherwise provided to PARKLU shall be in compliance with all applicable laws and regulations;

iii. all information, materials and attachments submitted through the Site or otherwise provided to PARKLU is free from any Virus;

iv. it will not use the Site or Services in a manner or for any purpose that is illegal, immoral or offensive;

v. it complies with and will continue to comply with all the terms set out in these Conditions, including Clauses 8(a), 8(i) and 8(j); and

vi. it is authorized to use its Company logo and that the Company logo does not infringe or violate any applicable laws and regulations, the intellectual property right or proprietary rights of a third party.

l) In the event that the Company is in breach of Clauses 8(a), 8(i), 8(j), or 8(k), PARKLU shall be entitled to remove or amend the Collaboration from the Site based on its sole discretion and without any obligation to deliver a prior notice or obtain consent from the Company and/or may require the Company to amend any part of such Collaboration in accordance with its directions in order to comply with the Conditions before it permits the re-publication of the Collaboration on the Site. For the avoidance of doubt, PARKLU shall have no liability for the removal or maintenance of such Collaboration and shall not be obliged to extend the publication period of such Collaboration on the Site.

m) PARKLU reserves the right to suspend, reject, remove or cancel any Collaboration at its discretion without liability or refund, including where:

i. the Company uses a Company name and logo in the Collaboration, which PARKLU believes does not belong to the Company;

ii. the Company includes a URL or hyperlink on its Collaboration which leads or otherwise re-directs the user to a third party website;

iii. the Collaboration is discriminatory, offensive or misleading; or

iv. the Collaboration otherwise in breach of any provisions of Clause 8(i), Clause 8(j) and Clause 8(k).

n) In the case that if the Company lend any of their properties to Influencer(s) for the use of the Collaboration, the Company shall at all times, at its own risk and its responsibility to take all protective measures to guard its own properties.  PARKLU is not responsible for any loss or damage whatsoever caused or of any kind incurred as a result of the use of the properties. 

9. Indemnity

a) The Company agrees to indemnify, defend and hold harmless PARKLU, and the respective administrators and their associated Company, officers, directors, employees, agents, proprietors, partners, representatives, shareholders, servants, attorneys, predecessors, successors and assigns from and against any claims, actions, demands, injuries, liabilities, losses, damages, costs and expenses ( including reasonable legal fees and litigation expenses on a full indemnity basis ) arising out of or related to the Company’s use of the Services or Site or its contents or their breach of these Conditions, to the fullest extent permitted by applicable law. 

b) PARKLU agrees to indemnify, defend and hold harmless the Company, and the respective administrators and their associated Company, officers, directors, employees, agents, proprietors, partners, representatives, shareholders, servants, attorneys, predecessors, successors and assigns from and against any claims, actions, demands, injuries, liabilities, losses, damages, costs and expenses ( including reasonable legal fees and litigation expenses on a full indemnity basis ) arising out of or related to PARKLU’s obligations or performance of its obligations in connection with the Services.

10. No Warranties

a) The Site and all Services are provided on an “as is” basis by PARKLU and PARKLU retains its absolute right to change or vary the Site design, taxonomy of the Site from time to time without prior notice.

b) Without limiting the generality of Clause 10(a), PARKLU does not warrant or guarantee:

i. the truth, accuracy, reliability or completeness of collaborations, listings, or other information or content submitted by users of its Site ( “User Content” ), and such User Content should be used, accepted and relied upon only with care and discretion and at the Company’s own risk; or

ii. that any Collaboration will be viewed by any specific number of persons or by any specific user or will result in successful collaboration.

11. Confidentiality

a) The Company:

i. may not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement.

ii. may not disclose any Confidential Information to any person except with the prior written consent of PARKLU unless the disclosure is required by any applicable law or regulation.

iii. shall make every effort to prevent the use or disclose of the Confidential Information.

12. Exclusion & Limitation of Liability

a) The Company acknowledges and agrees that PARKLU only provides an online platform for the Company to publish Collaborations on the Site. PARKLU does not endorse or recommend and has no control over any influencer or other user of its Site and Services, or third parties ( collectively “Third Parties” ), including the misrepresentation, fraud, breach of contract, tortious or illegal acts or omissions of any Third Parties, and the Company agrees and undertakes to use its own judgment and discretion in its dealings through the Site or Service.

b) In no event shall PARKLU be liable to the Company or any third party for:

i. any acts or omissions of Third Parties, including any unauthorized copying, reproduction, adaptation, publication, distribution or other use of the Collaboration on any site except the Site;

ii. any decision made by the Company, Third Parties or other third party arising from or in connection with the use of the Site or Services;

iii. any information, tools, content or links which may be accessed or is otherwise made available on its Site or through its Services;

iv. any scheduled and unscheduled outages of web servers, equipment, wide area and local area networks, and telecommunications links, including suspension of the Site or any Service for maintenance;

v. slowdowns in server response times, server performance, or loss of bandwidth;

vi. security breaches and loss of data;

vii. any Virus;

viii. any indirect, special, consequential, exemplary or punitive loss or damage for any breach of these Conditions, or any loss of profits, loss of business or goodwill, loss of use, or any claim by any third party; or

ix. any act, neglect, omission or wilful default of a third party service provider or subcontractor of PARKLU.

c) The total liability of PARKLU to the Company for any and all claims whether by the Company or by any other person and howsoever arising in connection with or arising out of the provision of Services or resulting from the breach of the Contract and/or these Conditions by PARKLU shall not in any event exceed the fees received by PARKLU in respect of the Service giving rise to such claims.

13. Suspension and Termination of Services

a) The Company agrees that PARKLU has the right in its sole and absolute discretion and without notice to restrict, suspend, or terminate the Company’s use or access to all or any part of the Services, and/or to terminate, deactivate or suspend the Company’s account, with assignment of due reason.

b) The Company agrees not to hold PARKLU liable or responsible for any loss or damage incurred by the Company arising out of or in connection with the restriction, suspension and/or termination of the Service(s) or the Company’s account.

14. Force Majeure

a) PARKLU shall not be liable for or be deemed to be in breach of the Contract and/or these Conditions by reason of any failure in performing any of its obligations under the Contract and/or these Conditions during any period in which performance is delayed by any Force Majeure Event.

b) PARKLU shall notify the Company of any delay or failure arising through any Force Majeure Event and shall use its reasonable efforts to provide the Services as soon as practicable. The Company shall not terminate the Contract by reason of any such delay or failure.

15. Amendment

a) PARKLU reserves the right to change the Terms and Conditions without prior written notice at any time, at PARKLU’s sole discretion, by posting a copy of the amended Terms and Conditions on the Site. The amended Terms and Conditions shall be effective upon posting on the Site.  Any Order which has already been made by the Company shall be governed by the Terms and Conditions in effect as of the date that such Order was made.

b) Any attempt to modify, supplement or amend these Conditions by the Company will be null and void, unless expressly agreed to in writing by PARKLU.

16. Complete Contract

a) The Contract and these Conditions represent the entire understanding between PARKLU and the Company concerning the sale and supply of the Services, and shall form the exclusive statement of all the matters covered by the Contract and these Conditions. Any and all previous course of dealings, written or oral understandings, discussions, representations, correspondence and communications between the Parties relating to the matters covered by the Contract and/or these Conditions are hereby superseded.

b) Any term or condition of the Company’s Order which is in any way inconsistent with or in addition to these Conditions shall not be applicable or binding on PARKLU, unless otherwise agreed in a written agreement signed by Company and PARKLU, and any failure by PARKLU to object to the said term or condition shall not be considered a waiver of these Conditions.

17. Assignment

a) The Company shall not assign or otherwise transfer the Contract or any of its rights and obligations hereunder, whether in whole or in part without the prior written consent of PARKLU. Any such unauthorized assignment shall be deemed null and void.

b) PARKLU may assign or transfer the Contract or any of its rights and/or obligation hereunder, whether in whole or in part to a third party provided that PARKLU is in the process of restructuring, rehabilitation, merger, acquisition or amalgamation with the other partner/party.

18. No Waiver

a) No failure on the part of PARKLU to exercise, and no delay on its part in exercising, any right or remedy under the Contract will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy by PARKLU.

19. Illegality

a) If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the Parties, it will be struck out and the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.

20. Rights of Third Parties

a) A person or entity who is not a Party to the Contract shall have no right to enforce any term of the Contract, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, nothing in this Clause shall affect the rights of any permitted assignee or transferee of the Contract.

21. Governing Law and Jurisdiction

a) This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China ( “Hong Kong” ).

b) In the event any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation, the parties shall attempt in the first instance to resolve such dispute through friendly consultation.  If the dispute is not resolved in this manner within thirty (30) days after the delivery by any party of a notice confirming the existence of a dispute, then the dispute shall be settled by arbitration in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the Notice of Arbitration is submitted in accordance with these Rules.  The number of arbitrators shall be one.  The seat or legal place of arbitration shall be Hong Kong and the language of the arbitration shall be in English.

c) Except as otherwise agreed by the Parties or as described in Clause 21(b) above, the Parties irrevocably submit to the exclusive jurisdiction of the courts of Hong Kong for the purpose of hearing and determining any suit, action or proceedings and/or settling any disputes arising out of or in connection with this Agreement.

22. International Use

a) PARKLU does not represent that information and content are available or suitable for the use outside of Hong Kong nor abide by any laws outside of Hong Kong.  Users of PARKLU should comply with their applicable local laws if PARKLU is being accessed outside of Hong Kong.

23. Entire Agreement

a) This Agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement.  Neither party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement save for any representation made fraudulently.

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