Updated November 1, 2018.
These General Terms and Conditions of Sale (“T&C”) together with the Order Confirmation and Special Terms (as defined in the Order Confirmation), if any, constitute the entire “Agreement” between the parties. This Agreement shall govern Customer’s access to and use of the Site (as defined below) and the PARKLU products and services purchased by Customer as listed in the Order Confirmation (collectively, “PARKLU Services”). The PARKLU Services are provided by Park Lu Limited and its affiliate Park Lu Consulting (Shanghai) Limited (collectively, “PARKLU”) and its third-party providers, as applicable, on and through the domain and sub-domains of www.parklu.com (collectively, the “Site”). To the extent of any inconsistency between the T&C, Special Terms and the Order Confirmation, the Special Terms shall take precedence, followed by the T&C and then the Order Confirmation, unless otherwise agreed by the parties.
2. Right of Use
b) Customers who are marketing or public relations agencies may use the PARKLU Services on behalf of their clients but only if all of the following conditions are met: (i) Customer agrees that PARKLU and its licensors and/or providers are not parties to the agreement between Customer and its client; (ii) Customer’s payment obligations pursuant to this Agreement are not dependent upon receiving payment from Customer’s clients; (iii) the agreement between Customer and its clients is at least as restrictive and protective of PARKLU’s and its licensors’ and/or its providers’ rights as this Agreement. Customer shall be solely responsible for and shall comply with all laws, rules, regulations and directives in delivering and providing the Customer’s agency services, including but not limited to, any laws regarding privacy and the use and disclosure of personal data and any advertising and/or marketing laws.
Customer shall be responsible for obtaining and maintaining all hardware, software, communications equipment and network infrastructures required to access and use the Site and the PARKLU Services, and for paying all third-party fees and access charges incurred while using the PARKLU Services.
4. Account and Password
Customer will receive a password to log in to the Site and access the PARKLU Services. Customer shall have sole responsibility for all activities relating to such Customer’s account and shall immediately inform PARKLU of any unauthorised use of the Customer’s account.
5. Product-Specific Terms and Conditions
If Customer purchases the following PARKLU Services, the following applicable terms and conditions listed below shall apply, in addition to all other terms of this Agreement:
a) PARKLU Subscription: Customer represents that it has read, understands, and agrees to be bound by the terms and conditions located at http://www.parklu.com/terms.
b) PARKLU Full Service: Customer will abide by the terms set out in the Order Confirmation. PARKLU Full Service provides service hours for a defined Scope of Work. If Customer confirms any changes in Scope of Work, then PARKLU will notify Customer of additional fees incurred.
c ) PARKLU KOL Payment Service: Customer will abide by the terms set out the Order Confirmation. PARKLU will issue payments to influencers (“KOLs”) upon completion of the campaign terms approved by the Customer on the Site.
6. Third Party Sites and Third-Party Content
PARKLU Services may include links to third party websites (“Third Party Sites”). Customer is responsible for evaluating whether to access or use a Third Party Site and agrees to be bound by any applicable terms found therein. PARKLU does not screen, audit or endorse any Third Party Sites. PARKLU shall not assume any responsibility for the content, advertising, products or other materials (“Third Party Content”) on Third Party Sites. Customer agrees it will not copy, reproduce, distribute, transmit, broadcast, modify, display, sell, license or otherwise exploit Third Party Content except in strict compliance with the rights, if any, granted to Customer by any third party. Customer warrants that all content uploaded and distributed via the PARKLU Services by Customer shall comply with all applicable laws. PARKLU will terminate the account of any Customer, and block access of any user, who infringes any PARKLU or third party intellectual property right.
7. Invoicing and Payment
a) Prior to the start of each contract term, Customer will be invoiced for the full amount due. Customer shall pay all invoices within fourteen (14) days after the invoice date. Except as provided in Section 7.4 below, all payment obligations are non-cancellable, and all fees paid by Customer are non-refundable.
b) Unless otherwise stated, PARKLU’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase of PARKLU Services. If PARKLU has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides PARKLU with a valid tax exemption certificate from the appropriate taxing authority.
c ) If Customer fails to pay any fees on time, PARKLU reserves the right to charge a late payment fee calculated at a rate of fifteen percent (15%) per annum, and/or suspend or terminate access to PARKLU Services, with three (3) days notice to Customer.
d ) In the event PARKLU materially breaches this Agreement, and such breach remains uncured for a period of thirty (30) days after notice from Customer, Customer shall be entitled to a pro-rata refund for the portion of the then-current term that has been pre-paid and is subject to the material breach and remains uncured.
8. Duration and Cancellation
a) The Agreement shall commence on the date specified in the Order Confirmation and shall continue for the initial term as stated therein, unless earlier terminated in accordance with the Agreement. Thereafter, the Agreement will be extended automatically for periods of time equivalent to the initial term or the then-current renewal term at PARKLU’s then-current prices and subject to the terms of this Agreement, unless the Agreement is cancelled in writing at least sixty (60) days prior to the expiration of the initial term or the then-current renewal term. Any initial pricing and/or payment terms shall only be applicable to the initial term.
b) A timely cancellation according to Section 8.1 will become effective as of the end of the respective term. Upon expiration or termination of the Agreement, Customer’s access rights and all other rights granted under this Agreement shall expire. Termination of the Agreement shall not act as a waiver of any breach of the Agreement and shall not release a party from any liability for breach of such party’s obligations under the Agreement that occurred prior to the effective date of termination.
c ) In addition to other rights and remedies available to PARKLU, PARKLU is entitled to cancel the Agreement without notice if Customer violates essential or material obligations under the Agreement. PARKLU also reserves the right to cancel the Agreement without notice if a substantial decline in the asset situation of Customer occurs, if insolvency proceedings are opened for the assets of Customer or if such proceedings are rejected due to lack of assets.
d ) The following Sections shall survive the expiration, termination or cancellation of the Agreement in full force and effect: General, Third Party Sites and Third Party Content, Intellectual Property, Data Use and Restrictions, Liability and Warranty, and Additional Provisions.
9. Intellectual Property
Subject to applicable law, the content on the Site, except for content created by users and third parties if any, including without limitation, software, code, forms, text and other materials, trade marks, service marks or logos contained therein (“Marks”), are owned by or licensed to PARKLU. Customer’s use of the Site and the PARKLU Services is limited to the rights granted to Customer under this Agreement and PARKLU reserves all rights not expressly granted herein.
10. Data Use and Restrictions
The rights granted to Customer under this Agreement do not include any resale of any portion of the Site or its contents; any collection and use of any derivative of the Site or its contents; any downloading or copying of account information for the benefit of another company or party; or any use of data mining, robots, or similar data gathering and extraction tools. The Site or any portion of the Site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any purpose inconsistent with the limited rights granted to Customer under this Agreement. Customer may not frame or utilise framing techniques to enclose any trade mark, logo, or other PARKLU generated content of the Site, or use meta tags or any other “hidden text” or data elements utilising PARKLU’s name or trademarks without express written consent by PARKLU. PARKLU shall in no way be responsible or liable for unauthorised use or disclosure of personal information by the Customer.
11. Liability and Warranty
a) Subject to Section 11.5, either party’s total, aggregate liability arising out of or in connection with this Agreement shall in no event exceed the total amount of payments due by Customer to PARKLU during the initial term or the then applicable renewal term of the Agreement.
b) To the maximum extent permitted by applicable law, in no event shall either party be liable for any, indirect, incidental, special, consequential or exemplary damages, however caused and under any theory of liability arising out of or in connection with this Agreement. This shall include, but not be limited to, any loss of; profit, goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
c ) PARKLU warrants that it has the legal power and authority to enter into this Agreement. Except as provided herein and to the extent permitted by applicable law, PARKLU provides the Site “as is” without any warranty or condition of any kind, express or implied. PARKLU does not guarantee uninterrupted, secure or error-free operation of the Site. To the extent permitted by applicable law, PARKLU makes no representation or warranty as to the accuracy, timeliness, quality, completeness, suitability or reliability of any information or data accessed on or through the Site. No information obtained from PARKLU or through the Site, whether oral or written, shall create any warranty not expressly stated in this Agreement.
d ) PARKLU is not a party to any transactions which are entered into as a result of the Customer’s use of or access to the Site and/or the PARKLU Services. The Customer agrees that PARKLU shall have no liability whatsoever in respect of any such transactions.
e ) Nothing in this Section 11 or the rest of the Agreement is intended nor shall it be construed as an attempt by either party to exclude or limit any liability which cannot be excluded or limited under applicable law, including without limitation its liability for death or personal injury caused by its negligence or liability for fraudulent misrepresentation.
12. Operating Hours and System Maintenance
a) PARKLU shall use commercially reasonable efforts to ensure that the Customer receives uninterrupted and continuing service throughout the term of the Agreement.
b) Notwithstanding Section 12.1, PARKLU may need to carry out routine maintenance or urgent maintenance or the PARKLU Services may become unavailable for reasons not within PARKLU’s control. In such case, PARKLU shall use commercially reasonable efforts to inform the Customer of any downtime and restore the PARKLU Services as soon as reasonably practicable. In the event PARKLU fails to use commercially reasonable efforts and the PARKLU Services remain unavailable to Customer for more than three (3) business days of Customer first notifying PARKLU of such unavailability, PARKLU will issue to Customer a credit in an amount equal to the pro-rated charges of one day’s usage fees for every day that the PARKLU Services are unavailable for the Customer.
13. Additional Provisions
a) The Agreement will be governed by and interpreted in accordance with the laws of the jurisdiction where PARKLU is located. To the extent allowed by law, Customer irrevocably agrees all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the Rules of arbitration in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be the city where PARKLU is located. The language of the arbitral proceedings shall be English (or as determined between the parties). Judgement upon any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator is authorised to include in the award an allocation to any party of such costs and expenses, including reasonable attorneys’ fees, as the arbitrator shall deem reasonable.
b) A party’s waiver of a breach or default by the other party of any provision of the Agreement shall not be construed as a waiver of any succeeding breach or default by the other party, nor shall a party’s failure to exercise or enforce any right or provision of the Agreement be deemed to be a waiver of such right or provision.
c) Invalidity of any specific provision of this Agreement shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a valid provision which comes as close as possible to the intent of the invalid provision.
d) Neither this Agreement nor any obligation or right hereunder may be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that both parties may assign this Agreement in whole without the other party’s prior consent to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates on condition that such successor in interest agrees in writing to comply with all terms and conditions of this Agreement.
e) Both parties acknowledge and agree that this Agreement constitutes the entire agreement between the parties regarding the subject matter herein. Any other terms and conditions, including, without limitation, terms and conditions on or attached to a purchase order, vendor registration documents, tenders or request for proposals are void and shall be of no force and effect regardless of whether they are delivered to PARKLU prior to, concurrently, or after the execution of this Agreement. Performance by PARKLU with respect to the PARKLU Services shall not constitute acceptance of any additional or alternative terms and conditions nor shall a failure to act on said additional terms and conditions constitute acceptance of the provisions contained therein.
f) This Agreement may only be amended in writing signed by an authorised representative of both parties.
g) Customer and PARKLU agree that notices may be sent by electronic mail, to the electronic mail address indicated on the Order Confirmation, or then-current electronic mail address provided by a party to the other party and designated as the proper electronic mail address and agree that notices are deemed received forty-eight (48) hours after transmission. Each party agrees that any electronic communication will satisfy any legal communication requirements, including all such communication required by applicable laws to be in writing.