Terms of Service

  1. This Agreement (“the Agreement”) governs Your use of Exicon’s Platform Services. If you register for a Free Trial, this Agreement will also govern that Free Trial. By clicking a box indicating Your acceptance, executing an Order Form that references this Agreement, or starting to use Exicon’s Platform Services, You agree to all the terms of this Agreement. If You do not agree to all of the terms of this Agreement, you are not authorized to use the Platform Services or Website.

    You may not access the Platform Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Platform Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

    This Agreement is effective as between You and Us from the earliest date on which You either returned to Us an executed Order Form, clicked the box indicating your acceptance during the registration process or otherwise started to use the Platform Services (“Effective Date”).

    We reserve the right to amend this Agreement at any time by notifying You as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If we substantively amend this Agreement, we will post the updated Agreement on the Website with at least seven (7) days’ notice before the changes take effect. If You do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Platform Services or Website.

    Governing Language: The original Agreement is written in English. The English language text shall prevail in the event of a conflict between the English version and any translated version presented on the Website. Exicon shall have no liability for any incorrect or inaccurate translation appearing on the Website, nor for any damage incurred by users as a result of any mistranslation.

  2. Definitions & Interpretation

    • 1.1 The definitions and rules of interpretation in this section apply in this Agreement.
    • 1.2 “Confidential Information” means information that is proprietary or confidential and is clearly labelled as such.
    • 1.3 “Content” means the data inputted by You, Users, or Us on Your behalf for the purpose of using the Platform Services or facilitating Your use of the Platform Services, including but not limited to Customer Software Applications, together with the related files, Application Programming Interfaces (APIs), technical documentation, marketing collateral and other content.
    • 1.4 “Customer Software Application” means each unique software application or project that You manage or store as “My Apps” using the Platform Services.
    • 1.5 “Free Trial” means Your limited right to use the Platform Services free from any payment obligation, from the date of Your registration to use the Platform Services until the end of the free trial period for which you registered or are registering to use the applicable Service. If at the end of a Free Trial, You do not wish to purchase the Platform Services from Us, please notify us by sending an email to: [email protected]. In the event that You do not notify Us of Your intention to cancel or initiate payment for the Platform Services, We reserve the right to deny You access to Your account and the Platform Services and delete any Content associated with your account. Platform Services offered under a Free Trial may be limited in various ways as compared to the scope of available Platform Services, such as limits on number of users, lesser or no security, and disabled or limited customization, functionality and features. Free Trials are for general information purposes, and should not be relied on for Your operational purposes.
    • 1.6 “Initial Subscription Term” the initial term of this Agreement as set out in an Order Form.
    • 1.7 “Intellectual Property Rights” or “Intellectual Property” means all right, title, and interest in and to any copyright, database, design, logo, trademark, service mark, patent, invention, trade secret, domain name, confidential and proprietary information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), and any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations in part, divisionals, reissues, re-examinations, and revivals thereof and existing anywhere in the world.
    • 1.8 “Platform Services” means the provision of the Website where You can upload and manage Customer Software Applications, and other web services, the SaaS Software and other tools and features related thereto provided by Us to You in accordance with this Agreement and with the characteristics and features as described on the Website from time to time.
    • 1.9 “Order Form” means the document for placing orders for the Platform Services, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed to incorporate all of the terms and conditions contained herein, unless expressly amended by way of wording to this effect appended to the Order Form. Fees stated on Order Forms are exclusive of any other sales taxes or value added taxes. The Order Form will describe all of the Platform Services that We agree to make available to You.
    • 1.10 “Renewal Period” means the period described in clause 15.1.
    • 1.11 “SaaS Software” means the online software applications provided by Us as part of the Platform Services. This includes any customization, other derivative works, upgrades, releases, fixes, patches etc. related to the SaaS Software that We develop or deploy from time to time.
    • 1.12 “Subscription Fees” means the subscription fees payable by You to Us for use of the Platform Services, as set out in an Order Form.
    • 1.13 “Subscription Term” has the meaning given in clause 15.1.
    • 1.14 “The Parties” means You and Us collectively.
    • 1.15 “User” means an individual who has completed the user registration process and created a user account with Us. This includes an individual that We create a user account for on Your behalf and any individual invited by You to become a User.
    • 1.16 “User Subscriptions” means the User Subscriptions purchased by You pursuant to clause 8.1 which entitle Users to access and use the Platform Services in accordance with this Agreement.
    • 1.17 “Virus” any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
    • 1.18 “Website” means the website at http://www.exiconglobal.com and any other associated domains notified to You by Us from time to time.
    • 1.19 “We/Us/Our/Exicon” means the Exicon company described in section 24.
    • 1.20 “You” or “Your” means the company or other legal entity for which You are accepting this Agreement and any other party that You have authorized to use the Platform Services or Website on Your behalf.
    • 1.21 In this Agreement, unless the context requires otherwise
      • (a) any reference to a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns;
      • (b) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
      • (c) words in the singular shall include the plural and vice versa; and
      • (d) a reference to one gender shall include a reference to the other genders.
    • 1.22 The paragraph headings and sub-headings shall not affect the interpretation of this Agreement.
    • 1.23 If You are agreeing to this Agreement on behalf of individual Users under your control, you are shall procure that such other individuals comply with this Agreement and You shall be responsible and liable where such individual Users breach this Agreement.
  3. Grant of License

    • 2.1 Subject to the terms and conditions of this Agreement, We hereby grant to You a non-transferable, non-exclusive, limited term right to permit the Users to use the Platform Services during the Subscription Term solely for Your internal business operations.
    • 2.2 In relation to the Users, You undertake that:
      • (a) the maximum number of Users that You authorize to access and use the Platform Services shall not exceed the number of User Subscriptions You have purchased from time to time;
      • (b) You will not allow or suffer any User Subscription to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Platform Services; and
      • (c) each User shall keep a secure password for his use of the Platform Services that each User shall keep his password confidential.
    • 2.3 You shall not access, store, distribute or transmit any Viruses, or any content during the course of Your use of the Platform Services that:
      • (a) is unlawful, harmful, threatening, defamatory, obscene,harassing or racially or ethnically offensive;
      • (b) facilitates illegal activity;
      • (c) depicts sexually explicit images;
      • (d) promotes unlawful violence;
      • (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
      • (f) causes damage or injury to any person or property; and We reserve the right, without liability to You, to disable Your access to any material that breaches the provisions of this section.
    • 2.4 You shall not:
      • (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SaaS Software in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SaaS Software; or
      • (b) access all or any part of the Platform Services in order to build a product or service which competes with the Platform Services; or
      • (c) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform Services available to any third party except the Users; or
      • (d) attempt to obtain, or assist third parties in obtaining, access to the Platform Services, other than as provided under this clause 2.5.
    • 2.5 Any breach of clause 2.5 entitles Us to immediately terminate this Agreement, without prejudice to any other rights or remedies We may have against You.
    • 2.6 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform Services and, in the event of any such unauthorised access or use, promptly notify Us.
  4. Platform Services

    • 3.1 We reserve the right in Our sole discretion, at any time and from time to time to reasonably modify or discontinue, temporarily or permanently, the Platform Services or Website (or any part thereof), including but not limited to modifications to the design, SaaS Software, and other functions. You agree that We shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Platform Services or Website.
    • 3.2 We shall use commercially reasonable endeavours to provide 99.9% total uptime of the Platform Services, except for:(a) planned maintenance (which will be scheduled to the extent practical outside of normal Hong Kong business hours); or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks.
    • 3.3 We will, as part of the Platform Services and at no additional cost to You, provide You with Our standard customer support services, and/or enhanced support services purchased separately.
    • 3.4 You acknowledge that the Platform Services may enable or assist Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that You do so solely at Your own risk. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by You, with any such third party. Any contract entered into and any transaction completed via any third-party website is between You and the relevant third party, and not with Us. We do not endorse or approve any third-party website nor the content of any of the third-party websites made available via the Platform Services.
  5. Your Content

    • 4.1 You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Content.
    • 4.2 You grant to Us a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of Your Content solely to facilitate the performance of Platform Services by Us or Your use of the SaaS Software. You also grant Us the right to copy and maintain such material and content on Our servers (or the servers of Our suppliers). In addition, You grant Us a license to collect, use, store, and transmit non-personally identifiable technical and related information relating to Your Customer Software Applications for Our business purposes (including, but not limited to, supporting software use optimization and product marketing activities).
    • 4.3 We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content. We shall not disclose Your Content except as compelled by law or as expressly permitted in writing by You.
    • 4.4 We will back-up Your Content stored on Our system, including files and Customer Software Applications stored using the Platform Services and associated User data. Full backups of the Exicon file store are carried out weekly, with incremental backups performed daily. Full backups of the Exicon database are carried out nightly. All backups are held for a 14-day period. Any problems experienced by You in accessing the Platform Services should be reported to Our online feedback system or by emailing [email protected].
    • 4.5 In the event of any loss or damage to Your Content, Your sole and exclusive remedy shall be for Us to use reasonable commercial endeavours to restore the lost or damaged Content from the latest back-up of such Content maintained by Us. We shall not be responsible for any loss, destruction, alteration or disclosure of Content caused by any third party (except those third parties sub-contracted by Us to perform services related to Content maintenance and back-up).
    • 4.6 We shall, in providing the Platform Services, comply with our Privacy Policy relating to the privacy and security of content available at the Website, as such document may be amended from time to time by Us in Our sole discretion.
    • 4.7 We retain the right to create limits on use and storage of Your Content on the Platform Services at Our sole discretion. If the amount of Content stored by You is in Our sole opinion excessive in relation to the number of Customer Software Applications that You have purchased, we reserve the right to request that You either upgrade your subscription package or archive some of Your Content.
  6. Content in the Public Areas of the Website

    • 5.1 By posting or submitting content, ideas, any intellectual property or information on the public areas of the Website (currently the App Directory and the API Directory), you automatically grant, and you represent and warrant that you have the right to grant to Us a worldwide, non-exclusive, royalty-free, fully paid, perpetual, irrevocable right to display such content on the Website. You also grant each user of the Website a non-exclusive license to access any content that you post on a part of the Website that is available for the public to view.
    • 5.2 We reserve the right to monitor, edit or remove any content posted by You at Our sole discretion, for reasons including but not limited to that it is unlawful, threatening, libellous, defamatory, fraudulent, obscene or otherwise objectionable, or because it may infringe or violate any party’s intellectual property or privacy, or is alleged to violate, any applicable law or this Agreement.
  7. Our Obligations

    • 6.1 We undertake that the Platform Services will be performed with reasonable skill and care.
    • 6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform Services contrary to Our instructions, or modification or alteration of the Platform Services by any party other than Us or Our duly authorised contractors or agents. If the Platform Services do not conform with the foregoing undertaking, We will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide You with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Your sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, We:
      • (a) do not warrant that Your use of the Platform Services will be uninterrupted or error-free; nor that the Platform Services and/or the information obtained by You through the Platform Services will meet Your requirements;
      • (b) hereby disclaim all implied warranties of merchantability and fitness for a particular purpose with respect to the Platform Services, SaaS Software, and other materials and/or services; and
      • (c) are 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 You acknowledge that the Platform Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    • 6.3 We are under no obligation to provide You with any technical support under this Agreement, And We provide You with no assurance that any specific errors, software bugs, problems, discrepancies or other matters raised by You will be rectified.
  8. Your Obligations

    • 7.1 You shall:
      • (a) provide Us with:(i) all necessary co-operation in relation to this Agreement; and
        (ii) all necessary access to such information as may be required by Us; in order to render the Platform Services, including but not limited to Content, security access information and configuration services;
      • (b) comply with all applicable laws and regulations with respect to Your activities under this Agreement;
      • (c) carry out all Your other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Your provision of such assistance as agreed by the parties, We may adjust any agreed timetable or delivery schedule as reasonably necessary;
      • (d) ensure that the Users use the Platform Services in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
      • (e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Us, Our contractors and agents to perform their obligations under this Agreement, including without limitation the Platform Services;
      • (f) ensure that Your network and systems comply with the relevant specifications provided by Us from time to time; and
      • (g) be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to Our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
  9. Fees and Payment

    • 8.1 Subscription Fees: All Subscription Fees are payable in advance, either annually in advance or in accordance with any different payment terms as stated in the applicable Order Form. You shall pay the Subscription Fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form:
      • (a) payment obligations are non-cancellable and fees paid are non-refundable;
      • (b) the package of the specified number of User Subscriptions and Customer Software Applications purchased cannot be decreased during the relevant subscription term stated on the applicable Order Form; and
      • (c) Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for upgraded packages of Additional User Subscriptions and Customer Software Applications added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.
    • 8.2 You shall on the Effective Date provide to Us valid, up-to-date and complete credit card details or approved purchase order information acceptable to Us and any other relevant valid, up-to-date and complete contact and billing details and, if You provide:
      • (a) Your credit card details to Us, You hereby authorise Us to bill such credit card:
        (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term together with a 5% credit card handling fee; and
        (ii) subject to clause 15.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
      • (b) Your approved purchase order information to Us, We shall invoice You:
        (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term;
        (ii) subject to clause 15.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; and and You shall pay each invoice within 30 days after the date of such invoice.
    • 8.3 If We have not received payment within 30 days after the due date, and without prejudice to any of Our other rights and remedies:
      • (a) We may, without liability to You, disable Your password, account and access to all or part of the Platform Services and We shall be under no obligation to provide any or all of the Platform Services while the invoice(s) concerned remain unpaid; and
      • (b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Our bankers in Hong Kong at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
    • 8.4 We shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions and/or storage of additional Customer Software Applications purchased pursuant to clause 8.1 at the start of each Renewal Period upon 90 days’ prior notice to You and shall be deemed to have been amended accordingly.
  10. Proprietary Rights

    • 9.1 You acknowledge and agree that Exicon and/or its licensors own all Intellectual Property Rights in the SaaS Software and Platform Services. Except as expressly stated herein, this Agreement does not grant You any rights to, or in, Intellectual Property Rights, or any other rights or licenses in respect of the SaaS Software and Platform Services.
  11. Publicity

    • 10.1 You agree that We shall have the right, both during the term of this Agreement, and in perpetuity, to publicize, promote, advertise and reference You as a present or past client.
    • 10.2 During the term of this Agreement, and unless otherwise set forth, You grant Us the right to reference Your name and/or logo in media releases, whitepapers, case studies, on the Website, and in other forms of marketing and/or corporate, technical, financial, product, brand communications provided that We follow relevant guidelines for the use of Your name and brand features and such use has been submitted to You for approval in advance. Such approval shall not be unreasonably withheld.
    • 10.3 Upon submission of marketing or media related promotional, advertising or publicity copy or designs that reference either You or Us, the receiving party shall have three business days to approve or return edited copy. Should no reply be received, the submitted copy or designs shall be considered approved.
  12. Confidentiality

    • 11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
      • (a) is or becomes publicly known other than through any act or omission of the receiving party;
      • (b) was in the other party’s lawful possession before the disclosure;
      • (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
      • (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
      • (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    • 11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
    • 11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
    • 11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    • 11.5 You acknowledge that details of the Platform Services, and the results of any performance tests of the Platform Services, constitute Our Confidential Information.
    • 11.6 This section 11 shall survive termination of this Agreement, however arising.
  13. Indemnity

    • 12.1 You shall defend, indemnify and hold Us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Your use of the Platform Services, provided that:
      • (a) You are given prompt notice of any such claim;
      • (b) We provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
      • (c) You are given sole authority to defend or settle the claim.
  14. Limitation of liability

    • 13.1 This section 13 sets out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents and sub-contractors) to You in respect of:
      • (a) any breach of this Agreement;
      • (b) any use made by You of the Platform Services or any part of them;
      • (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
    • 13.2 Except as expressly and specifically provided in this Agreement:
      • (a) You assume sole responsibility for results obtained from the use of the Platform/Services by You, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Platform Services, or any actions taken by Us at Your direction;
      • (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement including but not limited to fitness for a particular purpose, merchantability and non-infringement; and
      • (c) the Platform Services are provided to You on an “as is” and “as available” basis and could contain defects, faults, mistakes, and other deficiencies.
      • (d) The aforesaid disclaimers shall survive acceptance, payment and termination of the Platform Services.
      • (e) These disclaimers constitute an essential part of this Agreement. No use of the Platform Services or Website is authorized hereunder except pursuant to these disclaimers.
    • 13.3 Nothing in this Agreement excludes the Our liability:
      • (a) for death or personal injury caused by Our negligence; or
      • (b) for fraud or fraudulent misrepresentation.
    • 13.4 Subject to clause 13.2 and clause 13.3:
      • (a) We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
      • (b) Our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
  15. Security Breach

    • 14.1 In the event of a security breach:
      • (a) by anyone other than Your Users, We will immediately:(i) initiate remedial actions that are consistent with industry standards;
        (ii) notify You of the security breach, its nature and scope, the nature and scope of remedial actions We will undertake, and the timeline within which We expect to remedy the breach;
    • 14.2 by Your employees, agents and independent contractors, You will maintain responsibility for initiating remedial actions and notify Us immediately of the breach and steps You expect to remedy the breach.
  16. Term and Termination

    • 15.1 This Agreement shall, unless otherwise terminated as provided in this section 15, commence on the Effective Date and shall continue for the Initial Subscription Term as indicated on your Order Form and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
      • (a) either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
      • (b) otherwise terminated in accordance with the provisions of this Agreement;
    • 15.2 and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
    • 15.3 Any Free Trial account that We have arranged for You, for any period of time, shall be bound by the terms in this Agreement, including the terms for Termination as set forth in this section 15, unless expressly agreed by Us in writing to You and detailed in a signed Order Form or this Agreement.
    • 15.4 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
      • (a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
      • (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
      • (c) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
      • (d) the other party ceases, or threatens to cease, to trade; or
      • (e) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
    • 15.5 On termination of this Agreement for any reason:
      • (a) We may destroy or otherwise dispose of any of Your Content in Our possession unless We receive, no later than 30 days after the effective date of the termination of this Agreement, a written request for the delivery to You of the then most recent back-up of Your Content. We shall use reasonable commercial endeavours to make available to You the back-up of Content in standard commercial format along with attachments in their native format within 30 days of its receipt of such a written request, provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination); and
      • (b) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
  17. Force Majeure

    • 16.1 We shall have no liability to You under this Agreement if We are prevented from or delayed in performing Our obligations under this Agreement, or from carrying on Our business, by acts, events, omissions or accidents beyond Our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that You are notified of such an event and its expected duration.
  18. Waiver

    • 17.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    • 17.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
  19. Severance

    • 18.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    • 18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
  20. Entire Agreement

    • 19.1 This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
    • 19.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
  21. Assignment

    • 20.1 You shall not, without Our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    • 20.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under this Agreement.
  22. No Partnership or Agency

    • 21.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
  23. Third Party Rights

    • 22.1 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
  24. Notices

    • 23.1 Any notice to be given under this Agreement shall be by post to Your address as notified to us on Your Order Form, or by email via the email address You provide to Us, or such other working email address for You as You may notify to Us from time to time. Any notice to Us should be addressed to the relevant company described in section 24.
  25. Governing Law and Jurisdiction

    • 24.1 Details of who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, are set out below:
  26. You are contracting with: Exicon Limited

    Notices should be addressed to: 302 Wilson House 19-27 Wyndham Street, Central, Hong Kong

    The governing law is: Hong Kong

    The courts having exclusive jurisdiction are: Hong Kong