Terms and Conditions of Use of Merchant Services (“Terms of Merchant Services”)
Terms and Conditions of Use of Merchant Services (“Terms of Merchant Services”)
The Terms of Merchant Services governing the use of the merchant service system (“System”) operated by Pet-a-hood Limited and/or its subsidiary(ies) and/or its affiliate(s) (hereinafter collectively referred to as the “Company”, and where the context requires or permits, “Company” may refer to any one of Pet-a-hood Limited and/or its subsidiary(ies) and/or its affiliate(s)) and/or any services made available to a party (“Merchant”) who has signed any contract, quotation, registration form or service order form (hereinafter singly or collectively referred as the “Service Order”) with any subsidiary or affiliate of Pet-a-hood Limited or upon acceptance of any free trial offer for using any modules of the System and/or any related services.
The relevant information uploaded by Merchant or by any party authorized by Merchant using the System will be published on Petahood.com and/or, its sub-domains (hereinafter collectively or singly reference to as the “Website(s)”), Pet-a-hood mobile applications and/or mobile webs (hereinafter collectively or singly reference to as the “Application(s)”), and/or any media platforms powered by the Company (hereinafter singly or collectively referred to as “Platform(s)”) (The Website(s), Application(s) and the Platform(s) may be hereinafter singly or collectively referred to as “Site(s)) and/or platforms operated by any third parties (“Third Party Platform”) which have been authorized by the Company to display such relevant information and in connection with the provision of marketing materials, offers, vouchers and/or any other services which are made available via the Sites or the Third Party Platform for use and/or viewing by general users (“Users”) of the Sites or users of the Third Party Platform. The Company reserves the right to revise the Terms of Merchant Services from time to time by posting the revised version on the Sites. Once posted on the Sites, the revised Terms of Merchant Services shall become effective. The Merchant’s continued use of the Sites after changes of the Terms of Merchant Services have been made constitutes the Merchant’s acceptance of the revised Terms of Merchant Services.
The Company’s provision of a non-exclusive, revocable, non-sublicenable and non-transferrable right to use the software programs, functionalities, processing and technologies of any module of the System, together in each case with any related services and materials which the Company makes available are hereinafter referred as the “Merchant Services”.
The rights of the Merchant and outlet(s) nominated by the Merchant (“Participating Outlet(s)”) to use any of the Merchant Services which is non-exclusive, revocable, non-sublicensable and non-transferable, are effective from the date as stipulated in the Service Order and will be terminated on the expiry of the service period as stipulated in the Service Order or upon termination in accordance with the terms of thereof, whichever is earlier (the “Term”). In case of any free trial of any module of the System offered to the Merchant without executing any Service Order, the Term shall be determined at the sole discretion of the Company.
1. Provision of the Merchant Services
(a) The Merchant Services provided by the Company shall only be used by the Merchant and the Participating Outlet(s) during the Term.
(b) The Merchant undertakes that it shall comply, and shall procure each Participating Outlet(s) (including any persons authorized by the Merchant to use the System (“Authorized User(s)”), its employees, agents and contractors (collectively “Related Parties”)) to comply with the terms of the Agreement. The Merchant shall be fully responsible for any breach of any term of the Agreement by the Participating Outlet(s) or the Related Parties.
(c) The Merchant agrees that the Company shall have the exclusive right to substitute, remove, modify, enhance or upgrade part or all of the components and modules of the System at any time at its absolute discretion without any notice to the Merchant and the Merchant shall have no right to object to such substitutions, removals, modifications, enhancements and/or upgrades made to the System provided that: i) the Company gives to the Merchant reasonable notice of any changes that may materially affect the normal use of the System; and ii) such substitutions, removals, modifications, enhancements and/or upgrades will not deprive the Merchant of the standard features and functionalities of the System as at the commencement date (as stipulated in the Service Order) of its use of the related module(s) of the System.
(d) The Company will use its reasonable efforts to ensure that sufficient capacity is maintained on its computer facilities to enable: i) the Participating Outlet(s) to use and access the System; and ii) users of the Sites to access the Sites.
(e) The Company may at its own absolute discretion during any period of time: i) carry out scheduled maintenance and non-scheduled maintenance of the System and the Sites; and ii) provide and carry out daily backup of the data collected and maintained by the Company solely for the Merchant (“Database”).
2. The Merchant’s Facilities
(a) The Merchant shall be solely responsible for the provision of its and its Participating Outlet(s)’ own internal facilities (including but not limited to terminal, mobile device, software, electricity, modem and internet connection, telecommunications facilities and hardware) (hereinafter collectively referred to as “Access Facilities”) necessary for utilizing any of the relevant Merchant Services and/or any relevant module of the System.
(b) The Company accepts no responsibility for any deficiency in or malfunction or maintenance of the Merchant’s Access Facilities.
3. The Merchant’s Representations, General Obligations and Responsibilities
(b) The Merchant will promptly inform the Company of any action or event of which it becomes aware that has the effect of making inaccurate, any of the Merchant’s representations or warranties as set out in Clause 3(a) above.
(c) The Merchant shall ensure that only the Authorized User(s) who have been properly trained may log into the System and that the Authorized User(s) shall use the System in accordance with the service guidelines as may be provided by Company from time to time during the Term.
(d) The Merchant shall maintain and procure all Related Parties to maintain the confidentiality of the username (“Username”) and password (“Password”) required to access the System.
(e) The Merchant is solely responsible for any use of, action taken and transactions that occur under the Username and the Password.
(f) The Merchant shall promptly notify the Company of any changes in information about the Participating Outlet(s) and any change in the particulars of the Authorized User(s) in accordance with the terms of the Agreement.
(g) The Merchant and the Participating Outlet(s) shall fully comply with the Trade Descriptions Ordinance (Cap. 362 of the laws of Hong Kong) and all other applicable laws to ensure that the information/content uploaded to the System is true, legal, valid, up-to-date, accurate, not misleading and not infringing any third party’s intellectual property rights.
(h) The Merchant and the Participating Outlet(s) shall provide and fulfill the terms of their services/products and/or the terms of any coupons and/or Vouchers (as defined in Clause 6(a)) (if applicable) which shall be/are uploaded to the System for publishing on the Sites in accordance with the terms of the Agreement and the Merchant shall be solely responsible for and bear all risks relating to the transactions.
(i) The Merchant is responsible for any act or omission of any Participating Outlet(s) and the Redemption Point (as defined in Clause 6.1 below) in connection with the use of any offer, sale and redemption of coupon or Voucher (as defined in Clause 6(a) below), including without limitation,: (a) any failure by any Participating Outlet(s) and/or the Redemption Point to honor any coupon or Voucher; or (b) the imposition of any terms and conditions on any coupon or Voucher including quality, safety, usability or any aspect of the products and/or services provided by the Participating Outlet(s) and/or Redemption Point that violates any applicable laws or regulations.
(j) The Merchant shall not upload or submit to the System any unlawful or inappropriate content, such as content related to sale of any potentially hazardous pet food, pet supplies, tobacco product or any other item prohibited by any applicable law.
(k) The Merchant agrees that the Company shall have the right to pre-screen and approve content of any coupons, Vouchers and materials provided with the System before they are published on any Site. The Company shall have the rights to pre-screen, refuse and/or remove from the System and/ or the Sites any content that violates any term of the Terms and Conditions or the Agreement or any applicable laws or regulations.
(l) The Merchant shall promptly notify the Company of any malfunction, error or defect in the System and provide the Company with a list of output and any other data that the Company may request in order to reproduce conditions similar to those present when such error, defect or malfunction occurred.
(m) The Merchant shall maintain procedures to facilitate the reconstruction of any lost or altered files, data or computer software, and the Merchant agrees that to the fullest extent permissible under the law, the Company will not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs.
(n) (i) The Company may, from time to time, in accordance with the applicable laws and the applicable terms of the Agreement, provide personal data of Users, such as name, email address and/or telephone number (“Personal Data”) to the Merchant (based on the Merchant Services which the Merchants have subscribed for) for the purposes of enabling the Merchant and/or the Participating Outlet(s) to arrange and deliver services or products which have been offered by the Merchant or the Participating Outlet(s) through the Sites; and/or to conduct internal operation and business analysis aiming to provide better services to such Users. (ii) The Merchant and the Participating Outlet(s) shall at all times properly protect all Personal Data provided by the Company or otherwise collected through the System or the Merchant Services in accordance with the applicable laws and shall at all times comply with the requirements of the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) and similar applicable laws or regulations of other countries where the Merchant and/or its Participating Outlet(s) may be located at otherwise that they are subject to. The Merchant shall use its best endeavors to ensure that the Personal Data is protected against misuse, loss or unauthorized access, modification or disclosure and shall make sure that the Personal Data is only accessible by staff members of the Merchant and the Participating Outlet(s) on a need-to-know and confidential basis for the aforesaid purposes only.
(o) Unless express consent is obtained from the respective data subjects of the Personal Data, the Merchant must not and shall procure the Participating Outlet(s), its related parties and its affiliated parties not to use any of the Personal Data for purposes other than those stated in Clause 3(n) above (and in particular, not for any direct marketing purposes).
(p) The Merchant shall ensure maintenance and renewal of all the licenses and permits which are required in connection with the business operation of the Participating Outlet(s) to comply with all the applicable laws and shall ensure that the Participating Outlet(s) shall prepare, sell and provide any product and/or service in strict compliance with all the applicable laws, regulations and standards.
(q) The Merchant agrees that the Company may disclose or publish the name, address(es) and telephone number(s) of the Merchant and/or the Participating Outlet(s), and materials which are not of a confidential nature provided by the Merchants and/or the Participating Outlet(s) for promoting the Merchant Services.
(r) The Merchant agrees to use its best effort to display the promotional materials, such as tent card, leaflet, sticker etc. provided by the Company at the Participating Outlet(s) for promoting the Merchant Services used by the Participating Outlet(s).
(s) The Merchant shall not resell or assign, subcontract or attempt to resell or assign or subcontract the Merchant Services to any parties without the prior written consent of the Company.
(t) The Merchant shall not alter, reproduce, adapt, distribute, publish, reverse engineer, compile or attempt to create any source code that is derived from the System.
(u) The Merchant shall pay, indemnify, and hold the Company harmless from any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty which arise from the Company’s provision of any service to the Merchant but is not based on the Company’s income. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to the Company under any Service Order signed between the Merchant and the Company.
4. Applicable to the Merchant in utilizing Voucher Transaction Module of the System
(a) The Voucher Transaction Module of the System enables the Merchant to provide Vouchers (as defined below) to users of the Site and users of the Third Party Platform (if any) (“Voucher Transaction Service”). A Voucher (“Voucher”) entitles the holder of Voucher to redeem services and/or products via the Application or the Third Party Platform (as the case may be) for use at certain Participating Outlet(s) (“Redemption Point”) as designated by the Merchant pursuant to the Terms of Voucher (as defined in Clause 4(b) below).
(b) The Merchant shall ensure that the terms and conditions of use of the Voucher (“Terms of Voucher”) provided through the System, including but not limited to the selling price, discounted price, conditions of use, valid period, detailed descriptions of services and/or products to be redeemed with the Voucher etc. are true, valid, up-to-date, accurate and not misleading and that the Merchant or the Participating Outlet shall provide the holder of the Voucher the services and/or products according to the Terms of Voucher. The Merchant agrees to indemnify and hold harmless the Company, its officers, directors, employees, agents, partners, representatives, shareholders and servants against any claims, actions, demands, liabilities, losses, damages, costs and expenses on a full indemnity basis arising from or resulting from the Merchant’s breach of this Clause 4(b).
(c) Materials submitted by the Merchant to the System for creating a Voucher are subject to the Company approval before the Voucher can be displayed on the Sites or may be displayed on the Third Party Platform.
(d) The Merchant and/or the Redemption Point are solely responsible for providing the holder of the Voucher with such services and/or products pursuant to the Terms of Voucher and in accordance with the terms of the Agreement and to deal with any claims or any issue arising from the use of the Voucher.
(e) Upon termination of the Agreement governing the use of the Voucher Transaction Service (“Termination”), the rights and obligations of the Merchant, the Redemption Point, the Company and the Purchaser with respect to Vouchers before the Termination will survive the Termination until the obligations of the said parties have been fulfilled.
5. Force Majeure
(a) “Force Majeure Event” means act of God, war, act of foreign enemies, terrorists attack, riot, civil commotion, strike, lockout, diseases, pandemic, other labour disturbance (including those involving or affecting the Company) or any other circumstances beyond the reasonable control of the Company.
(b) The Company shall in no event be liable for any delay or failure to provide any Merchant Services pursuant to any terms of the Agreement due to a Force Majeure Event.
(c) If a delay or failure of the Company to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of Company’s obligations will be suspended accordingly.
6. Intellectual Property Rights
(a) The intellectual property rights in the System and all the Sites (“Company IP Rights”) including without limitation: i) (a) any material (including but not limited to Company’s software, documentation, templates, data, design, element graphics, formatting or CGIs) which is incorporated into or which has been used in the course of developing or operating the System and the Sites; and ii) the user interface of the Sites and the System, shall vest in the Company and/or its holding company.
(b) Without prejudice to Clause 6(a) above, the intellectual property rights in any data, logo, design, graphic and/or any other related materials (“Information”) owned and provided by the Merchant and/or the Participating Outlet(s) shall vest in the Merchant.
(c) The Merchant undertakes that it shall not directly or indirectly infringe nor permit its Related Parties to infringe the Company IP Rights under any circumstances.
(d) Without prejudice to the other provisions under this Clause 6, the Merchant further warrants and undertakes that the Information supplied to the Company hereunder or in connection herewith for use in the System and/or the Sites does not and shall not infringe any intellectual property rights and any other right of any third party (including but not limited to any registered or unregistered trademark, patent, copyright or design).
(a) The Merchant, the Company and their respective related parties shall keep confidential and not make use of any information and data of a confidential nature of the other party or treated as confidential by the other party, including without limitation information related to the Service Order and the System, developmental, technical, product, sales, marketing, promotional, operating, performance, cost, policy, financial, business, process and other proprietary information, trade secrets, know-how, customers and customer information of the other party (“Confidential Information”) and shall procure its officers, employees, agents and sub-contractors to keep such information confidential, save for the purposes of and only to the extent necessary for the due performance of the receiving party’s obligations under the Agreement.
(b) A party shall not be in breach of Clause 7(a) above in circumstances where it is compelled by any applicable laws, regulations or orders given by any court, government authority or regulatory body of competent jurisdiction or otherwise required by any relevant financial institutions in connection with the performance of or any transactions contemplated under the Agreement to disclose the other party’s Confidential Information.
(c) Notwithstanding any other provision of this Clause 7, the Company and the Merchant may disclose any Confidential Information of the other party to its related companies, solicitors, auditors, insurers or accountants on a need-to-know basis and shall procure that such related companies, solicitors, auditors, insurers or accountants shall thereafter be under a duty of confidentiality.
8. Content Licence
(a) The Merchant grants the Company a non-exclusive, worldwide, royalty-free right and licence to use, publish, host, display, adapt, modify, promote, copy, download, sub-license, forward, distribute, reproduce, transfer and/or edit materials and content provided to the Company and/or uploaded to the System by the Merchant and/or the Participating Outlet(s) for use in the Sites related to the provision of Merchant Services, including without limitation, for marketing, promoting and redistributing and using such information for analytics in any media as the Company deems appropriate.
9. Liability of the Company
(a) Nothing in the Agreement shall operate to exclude or restrict any party’s liability for death or personal injury resulting from negligence or fraud.
(b) Subject to Clause 9(a) above and to the fullest extent permitted by law, the Company shall not be liable to the Merchant or its Related Parties in respect of any loss, damage, claim, demand or action (including direct or indirect, special, economic or consequential loss or damage or loss of revenue, profit, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings) which may be suffered or incurred or which may arise directly or indirectly in respect of the Company’s performance of the Agreement or any activity contemplated by the Agreement whether for breach of contract, tort (including without limitation negligence) or under any statutes or otherwise and whether or not Company was made aware of the possibility of such loss, damage, claim, demand or action or should have been aware of that possibility.
(c) Notwithstanding anything to the contrary in the Agreement, to the fullest extent permitted by law, the aggregate liability of the Company, including for claims, expenses, damages or obligations, under or in relation to the provision of the Merchant Services, the Agreement, the performance of the Agreement or any activity contemplated by the Agreement, whether for breach of contract, tort or under any statute or otherwise in any calendar year shall in no event exceed the total fees paid by the Merchant to the Company in that calendar year.
(d) The Merchant confirms that it has not relied on any representation made by the Company which has not been stated expressly in the Agreement or upon any descriptions, illustrations or specifications contained in any document, including without limitation catalogues or publicity matter produced by the Company.
(e) To the fullest extent permitted by law, the Company shall not be liable for any loss, claim, damage, demand or action directly or indirectly arising out of any visit or non-visit to the Participating Outlet(s) by any Users, any Users’ use of services and/or products provided by the Merchants and/or Participating Outlet(s) via the Sites, nor liable or responsible for or be obliged to get involved in any disputes between the Participating Outlet(s) and any parties arising out of or in the connection with the use of any Merchant Services and/or the sale of any goods or services or vouchers offered by the Merchant and/or the Participating Outlet(s).
Merchant shall at all times indemnify and hold harmless the Company and its officers, employees, agents and contractors from and against any loss (including legal costs and expenses), damage, settlement, claim or liability incurred or suffered as a result of:
(a) a breach by the Merchant of any obligations under the Agreement; (b) any willful, unlawful or negligent act or omission of the Merchant or its Related Parties; (c) any breach or inaccuracy in any of the Merchant’s representations, undertakings or warranties under the Agreement; (d) the Merchant or the Related Parties’ negligence or willful misconduct; or (e) any action, complaint, liability or claim, including claims for personal injury, sickness, death or property damage, brought by (i) any party in connection with his/her use of any offer, coupon, Voucher and/or any other service made available on the Sites through the Merchant and/or the Participating Outlet(s)’ use of the Merchant Services or arising from his/her consumption of any service or goods at or provided by the Participating Outlet(s); or (ii) any party which relates to all or any part of the Information, including but not limited to leakage of information from the Database or any infringement of intellectual property rights, defamation or misappropriation of trade secrets caused by any act of the Merchant or any of the Related Parties.
(a) The Merchant acknowledges that the Merchant Services are computer network based services which may be subject to outages and delay occurrence. As such, the Company does not warrant that the Merchant Services, the System and the Sites will be uninterrupted or error-free.
(b) The Company does not accept any responsibilities or liabilities, whatsoever for any network problems, system or hardware failures, mobile telephone connection problems or interferences due to third party applications or system or hardware which may result in the Merchant Services being affected or unavailable.
(c) The System and the Sites, including all content, software, functions and modules in connection with the Merchant Services are provided “as-is” (subject to any substitutions, removals, modification, enhancements and upgrades that the Company may make from time to time) without any warranties of any kind. To the fullest extent permitted by law, the Company disclaims all warranties, including any warranties regarding merchantability, non-infringement of third party rights, fitness for particular purpose or about the accuracy, reliability, completeness or timeliness of the System and the Sites. The Merchant hereby agrees to assume the entire risk as to the quality and performance of the Merchant Services and that the Company shall not be liable if the System and/or the Sites are or is unavailable to the Merchant, the Participating Outlet(s) or users of the System or the Sites for whatsoever reason.
Without prejudice to any other rights which the Company shall/ may have under the Agreement or at law or in equity, the Company may terminate the Agreement (i) for any reason, by giving 2 months’ advance notice in writing to the Merchant; or (ii) immediately by notice in writing to the Merchant if the Merchant is in breach of any term of the Agreement and that if such breach is capable of being remedied, such breach is not remedied within fourteen (14) days of it being notified by the Company.
Clauses 3(n)(ii), 3(o), 5, 6, 8, 9, 10, 11, 13, 14 and 15 as well as other terms which by their nature should survive, shall survive termination of the Agreement.
In the event any provision of the Agreement is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of the Agreement shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of the Agreement one or more provisions as similar in terms as may be legal, valid and enforceable under the applicable law.
15. Governing Law and Dispute Resolutions
(a) These Terms of Merchant Services and any dispute or matter arising from or incidental to the use of the Sites 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 (hereinafter referred to as "Hong Kong"), unless otherwise specified.
(b) Any dispute, controversy or claim arising out of or relating to the Terms and Conditions including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the HKIAC Arbitration Rules as at present in force and as may be amended by the rest of this Clause: i) The appointing authority shall be Hong Kong International Arbitration Centre (hereinafter referred to as "HKIAC"); or alternatively, an appointing authority may be appointed by the Company at its sole and absolute discretion in any country which the Company considers as fit and appropriate. Any User(s) who are in dispute with the Company acknowledge(s) and agree(s) that the choice of appointing authority nominated by the Company shall be final and conclusive. ii) The place of arbitration shall be in Hong Kong at HKIAC; or alternatively, at any such arbitral body in any country as the Company considers fit and appropriate at its sole and absolute discretion. Any User(s) who are in dispute with the Company acknowledge(s) and agree(s) that the choice of the arbitral body and the place of arbitration nominated by the Company shall be final and conclusive. iii) There shall be only one arbitrator. iv) The language to be used in the arbitral proceedings shall be English.
(c) In the event of any breach of these Terms of Merchant Services by any one party, the other party shall be entitled to remedies in law and equity as determined by arbitration.
16. Rights of Third Parties
Except as expressly set forth herein, no person other than the parties to a Service Order shall have any right to enforce any term of the Agreement.
Should there be any inconsistency between the English version and any version in other language, the English version shall always prevail.
For any query, please email our Partner Relationship Executive at firstname.lastname@example.org.