Last updated date 30 May 2018
Welcome to eCompany
This Online Service User Agreement (“Agreement”) governs your use of the eCompany Limited website, mobile sites, applications, and/or other services that link to this Agreement (“Service” or “Services”).
When we use the terms “eCompany”, “we”, “us”, or “our”, we mean eCompany Limited. The term “you” refers to you as a user of one or more of the Services.
This Agreement describes the terms and conditions that apply to your use of the Services. You may not access or use any of the Services prior to agreeing to abide by all of the terms and conditions in this Agreement.
1. Your eCompany Account
1.1 Our Services
We provide the Services that enable you to set up your own eCompany together with the tools to manage your eCompany online.
1.2 Registration for an eCompany Account
Businesses including sole proprietors, bona fide charitable organizations, and other entities or persons are eligible to apply for an eCompany Account to use the Services. To register for an eCompany Account, you or the person or people submitting the application must provide us with your personal information and, if applicable, your business or trade name, address, email, phone number, tax identification number, URL, the nature of your business or activities, and certain other information about you that we require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your eCompany Account administrator. Your eCompany Account will be available after you have submitted, and we have reviewed and approved, all required information. We may terminate your eCompany Account at any time and for any reason.
1.3 Age Requirements
The following special requirements apply in relation to persons that are not at least 18 years old. If you are an individual or sole proprietor, and you are not at least 18 years old, but you are 13 years old or older, your representative must be your parent or legal guardian. If you are a legal entity that is owned, directly or indirectly, by an individual who is not at least 18 years old, but the individual is 13 years old or older, your representative must either obtain the consent of your board or of an authorized officer. Any such approving board, authorized officer, parent, or legal guardian is responsible to eCompany and is legally bound to this Agreement as if it had agreed to the terms of this Agreement itself. You may not use the Services if you are under 13 years of age.
1.4 Validation and Verification
At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate the information you provided, verify you or your representative’s identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners or principals. Your failure to provide this information or material may result in suspension or termination of your eCompany Account.
1.5 Information Retrieval Authorization
You authorize us to retrieve information about you from our service providers and other third parties, including credit-reporting agencies and information bureaus and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you or your representative. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your eCompany Account. We may periodically update this information as part of our due diligence criteria and risk analysis procedures.
1.6 Changes of Details
You agree to keep the information in your eCompany Account current. You must promptly update your eCompany Account with any changes affecting you, the nature of your business activities, your representatives, beneficial owners, principals, or any other pertinent information. We may suspend your eCompany Account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: (i) you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action; (ii) there is an adverse change in your financial condition; (iii) there is a planned or anticipated liquidation or substantial change in the basic nature of your business; (iv) you transfer or sell 25% or more of your total assets, (v) there is any change in the control or ownership of your business or parent entity; or (vi) you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.
1.7 Restrictions of Use
The following restrictions apply to your use of the Services: (i) You will not use any electronic communication feature of our Services for any purpose that is unlawful, tortious, abusive, intrusive on another's privacy, harassing, libellous, defamatory, embarrassing, obscene, threatening or hateful; (ii) You will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; and (iii) You will not upload, post, e-mail or otherwise transmit any material that contains viruses or any other computer code, files or programs which might interrupt, limit or interfere with the functionality of any computer software or hardware or telecommunications equipment.
2. Third Party Service Providers
2.1 Use of Service Providers
We may use third party service providers to assist in providing certain Services with or without notice to you (each, a "Service Provider"). We may also change Service Providers or may ourselves provide the Service without the assistance of such third party. You consent and authorize us to delegate the authorizations you provide to us to the Service Providers, as we deem necessary or desirable to provide the applicable Services to you.
2.2 Service Providers and this Agreement
You agree that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such Service Providers and such Service Providers are deemed to be third party beneficiaries of this Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. You also agree that all references to "eCompany”, “we", “us” or “our” within this Agreement and any incorporated terms are also deemed to include, where applicable, our agents, such as the Service Providers. To protect the privacy and security of your personal information, the Service Providers will only be authorized to use or maintain your personal information only in accordance with our privacy policy.
3. Data Protection and Privacy
3.1 Data Confidentiality
We will only use your data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorized by you. You will protect all data you receive through the Services, and you may not disclose or distribute any such data, and you will only use such data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any personal data to market to customers unless it has received the express consent to do so.
3.2 Privacy Policy
Protection of personal data is very important to us. Our privacy policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the personal data you provide to us. You agree to review the terms of our privacy policy, which we update from time to time.
4. Representations and Warranties
By accepting the terms of this Agreement, you represent and warrant that: (i) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (ii) any information you provide to us about your business, products, or services is accurate and complete; (iii) you will fulfil all of your obligations to third parties and will resolve all disputes with them; (v) you will comply with all laws applicable to your business and use of the Services; (vi) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (vii) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
5. Warranties, Disclaimers and Exclusive Remedies
5.1 No Warranty
We provide the Services and eCompany IP “as is” and “as available” without any express, implied, or statutory warranty of title, merchantability, fitness for a particular purpose, non-infringement, or other type of warranty or guarantee. No data, documentation or other information data provided by eCompany or obtained by you from through the Services, whether from eCompany or other sources, whether written or oral, creates or implies any warranty from eCompany to you. We do not warrant that the Services will be performed error-free or uninterrupted, that we will correct all service error, or that the Services will meet your requirements or expectations. We are not responsible for any issues related to the performance, operations or security of the Services that arise from your content or third party content or services provided by any third party.
5.2 Warranties are exclusive
To the extent not prohibited by law, the warranties are exclusive and all other warranties or conditions, whether express or implied, are expressly excluded, including, without limitation, for software, hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
6. Limitation of Liability
6.1 Limited Liability on Use of Services
The liability of eCompany is limited with respect to your eCompany Account and your use of the Services. In no event shall eCompany be liable, and you agree not to hold eCompany liable, for lost profits or any special, incidental or consequential damages (including without limitation damages for loss of data, loss of business or loss of goodwill) arising out of or in connection with our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or our Service Providers on any of the Services, or this Agreement (however arising, including negligence), unless and to the extent prohibited by law.
6.2 Entire Liability
For any breach of Services, your exclusive remedy and our entire liability shall be the correction of the deficient Services that caused the breach, or, if we cannot substantially correct the deficiency in a commercially reasonable manner, you may end the deficient Services and we will refund to you the fees for the terminated Services that you pre-paid to us for the period following the effective date of termination. In no event shall the aggregate liability of eCompany and the Service Providers arising out of or related to this Agreement or to your order for the Services exceed the total amounts actually paid under your order for the Services giving rise to the liability during the 12 months immediately preceding the event giving rise to such liability.
7. Indemnification
7.1 Claims from Third Party
If a third party makes a claim against either you or eCompany (“Recipient” which may refer to you or us depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either you or us (“Material Provider”) which may refer to you or us depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Material Provider, at the Material Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Material Provider, if the Recipient does the following: (i) notifies the Material Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim, or sooner if required by applicable law; (ii) gives the Material Provider sole control of the defense and any settlement negotiations; and (iii) gives the Material Provider the information, authority and assistance the Material Provider needs to defend against or settle the claim.
7.2 Violation of IP rights
If the Material Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Material Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Material Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects our ability to meet obligations under the relevant order, then we may, upon 30 days prior written notice, terminate the order. If such Material is third party technology and the terms of the third party license do not allow us to terminate the license, then we may, upon 30 days prior written notice, end the Services associated with such Material and refund any unused, prepaid fees for such Services.
7.3 No Indemnification
The Material Provider will not indemnify the Recipient if the Recipient (i) alters the Material or uses it outside the scope of use identified in the Material Provider’s user or program documentation or service specifications, or (ii) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient. The Material Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any Material not furnished by the Provider. We will not indemnify you to the extent that an infringement claim is based on third party content or any Material from a third party portal or other external source that is accessible or made available to you within or by the Services (e.g., a social media post from a third party blog or forum, a third party web page accessed via a hyperlink, marketing data from third party data providers, etc.).
7.4 Exclusive Remedy
This Section 7 provides the parties’ exclusive remedy for any infringement claims or damages.
8. Dispute Resolution; Agreement to Arbitrate
8.1 Binding Arbitration
In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property, will be determined by arbitration at the Hong Kong International Arbitration Centre whose decision will be binding to both parties.
8.2 Service of Process
Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by law.
8.3 Class Waiver
To the fullest extent permitted by law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
8.4 Sharing of Fees and Expenses
Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defences on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
8.5 Confidentiality on Arbitration
The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an award or its enforcement, (iii) disclosure of the award in confidential settlement negotiations, or (iv) as otherwise required by applicable laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
9. Termination
9.1 Term and Termination
This Agreement is effective upon the date you first access or use the Services and continues until terminated by you. You may terminate this Agreement by closing your eCompany Account at any time by opening the account page settings, selecting “close my account” and ceasing to use the Service. If you use the Services again or register for another eCompany Account, you are consenting to this Agreement. We may terminate this Agreement or close your eCompany Account at any time for any reason by giving you notice.
We may suspend your eCompany Account and your ability to access your eCompany Account, or terminate this Agreement, if (i) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; (ii) any law requires us to do so; or (iii) we are otherwise entitled to do so under this Agreement.
9.2 Additional Effects of Termination
In addition, upon termination you understand and agree that (i) all licenses granted to you by eCompany under this Agreement will end; (ii) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.
10. Survival
All provisions of this Agreement that give rise to a party’s on-going obligation will survive termination of this Agreement.