THIS SERVICE AGREEMENT is made and entered into the 22 day of June 2016.
(1) 2 Easy Limited, a company duly incorporated and existing under the laws of the Hong Kong (Company Number: 2254159), with registered office at Level 9, Smart Space 3C, Cyberport 3, 100, Cyberport Road, Hong Kong (“Intermediary” or “2Easy”); and
(2) The abovementioned company OR freelancer ( “Provider”)]
(collectively “Parties” and individually “Party”).
(A) 2 Easy Limited Limited is the operator of an electronic platform, namely www.2easy.com.hk (“2Easy”), whereby users can search for service providers in Hong Kong and somewhere overseas such as accountants, auditors, web designers, programmers etc. Users of 2Easy can submit a job request via 2Easy and then any registered service providers with 2Easy who are interested therein can reply with a quotation. Any user who accepts the Quotation is not required to place a deposit with 2Easy nor the Provider in order to engage the service provider in question. Users of 2Easy are given an option to place a deposit with 2Easy as a confirmation to hire the service provider. 2Easy is to be launched officially in the middle of 2016.
(B) The Provider is a registered service provider providing the services (including delivery of deliverables where applicable) (“Services”) in Hong Kong or somewhere overseas such as Taiwan, Malaysia, Singapore. The Provider has provided the company name or individual name, business registration number or Hong Kong identity number, details of their services in the registration form above.
(C) The Intermediary desires to allow the Provider to list his Services on 2Easy in order to attract business from the users of 2Easy.
(D) The Provider desires to list his Services on 2Easy in order to attract business from the users of 2Easy.
(E) The Provider acknowledges, accepts and agrees that any users of 2Easy can submit a request via 2Easy and any relevant service providers including the Provider having received the Request and are interested therein can reply with a quotation. Any such user who accepts a quotation is not required to place a deposit with 2Easy or the Provider in order to engage the service provider in question. Users of 2Easy are given an option to place a deposit with 2Easy as a confirmation to hire the service provider.
(F) Both Parties agree that 2Easy shall commit itself as an online intermediary for the purpose thereof and in no intention that the Intermediary shall hold any direct or indirect liabilities arising from any act or omission of the Provider in relation to the provision of his services to the users of 2Easy. Nor shall the Intermediary be liable for any material of the Provider that is posted and/or disseminated on 2Easy.
NOW, WHEREFORE, for good and valuable considerations, the Parties, intending to be legally bound, agree as follows:-
1. Deliverables and Services
(a) The Intermediary shall grant a non-exclusive licence free of charge to the Provider whereby the Provider shall introduce his services to the users of 2Easy for the purpose of attracting business therefrom. The materials of such introduction of the Provider’s services shall be provided by the Provider and subject to the approval of the Intermediary.
Any user of 2Easy can submit a request (“Request”) through 2Easy requesting for certain type of service. If the Provider is interested in such Request, he can reply with a quotation (“Quotation”). Where a user who has accepted the Quotation is not required to place a deposit to the Intermediary or the Provider in order to engage the Provider’s service (“Buyer”). Users of 2Easy are given an option to place a deposit with 2Easy as a confirmation to hire the service provider.
(b) Upon acceptance of the Quotation by the Buyer, a corresponding contract (“Contract”) therefor shall be deemed to have been entered between the Buyer, Intermediary and Provider in such a manner that it shall not be revoked by any party thereto. The Contract is entered on the basis of this Agreement for the provision of the Provider’s Services to the Buyer with 2Easy acting as a business broker.
(c) The Buyer shall pay the service fee (“Service Fee”) for the Contract directly to the Provider.
(d) The Intermediary may charge the Provider a referral fee (“Referral Fee”) if the Provider successfully receives a job lead referred by The Intermediary, except legal services.
The Referral Fee shall be at 15% [project final fee at $30,000 and below], 10% [project final fee between $30,001 and $200,000] and 7% [final project fee at $200,001 and above].
At the later stage, the Intermediary shall charge the Provider an annual listing fee for the Provider to list his services on 2Easy in order to attract business from the users thereof. The Listing Fee shall be paid by the Provider to the Intermediary in advance annually and shall not be refunded in any event. The Intermediary shall provide the Provider a two (2) months notification before the charging scheme to be executed.
(e) Both Parties agree that the Listing Fee may be varied from time to time, provided that the Intermediately shall give a written notice (“Notice”) to the Provider by not less than thirty (30) business day specifying the revised Listing Fee (“Revised Listing Fee”) and the date on which such Revised Listing Fee shall take effect. If the Provider does not agree to the Revised Listing Fee, he shall notify in writing the Intermediary to terminate this Agreement within [fourteen (14)] business day of the Notice. If the Provider does not notify the Intermediary within the aforesaid time period, he shall be deemed to have accepted the Revised Listing Fee by his continuous engagement with the Buyer thereafter and hence the Revised Listing Fee shall be binding on him without his right to dispute.
(f) In the event of failure by the Provider to complete his Services or deliver his Services of satisfactory quality under the Contract, the Provider shall be restricted to receive any job leads on the Platform and shall be deemed to have exercised his right to use one job lead in the month in question.
(g) The Provider undertakes to comply with all applicable laws including but not limited to the Sale of Goods Ordinance of the law of Hong Kong (Cap 26), the Supply of Services (Implied Terms) Ordinance of the law of Hong Kong (Cap 457), and the Trade Descriptions Ordinance of the law of Hong Kong (Cap 362) for the purpose of this Agreement.
(h) The Intermediary shall commit itself as an online business broker for the purpose of 2Easy and in no intention that the Intermediary shall hold any direct or indirect liabilities arising from any act or omission of the Provider in relation to the provision of his Service to any Buyer of 2Easy. Nor shall the Intermediary be liable for any material of the Provider that is posted and/or disseminated on 2Easy.
2. Consideration and Payment Terms
i. The Buyer shall choose to pay directly to the Provider or via the Intermediary. In the event that the Buyer chooses to pay via the Intermediary, the Intermediary shall pay back the received amount of the Deposit to the Provider within [fourteen (14)] business day after the Provider has delivered a portion of work to the Buyer. 2Easy shall charge a 3% of the Deposit as an administration fee. The Provider shall discuss and confirm with The Buyer the party to bear the cost. The portion of work shall be discussed and agreed by the Buyer and the Provider before the deposit is placed. The Intermediary shall be notified the portion of work and acting as an escrow between The Provider and The Buyer. The Intermediary shall not be responsible to the quality of the delivered work and shall release the Deposit as soon as the completion of The Provider’s Services to the Buyer (“Completion Date”). The Completion Date shall be determined and evidenced by the relevant data shown on and stored in the systems of 2Easy.
ii. In the event of failure by the Provider to complete his Services or deliver his Services of satisfactory quality under the Contract, the Provider shall forthwith refund to the Buyer all the amount he has received directly from the Buyer where the Buyer chooses to pay the Provider directly). Where the Buyer has chosen to pay the Service Fee via the Intermediary, the Provider shall not be entitled to such Service Fee.
iii. For the avoidance of doubt, the Provider shall bear all the costs in providing his Services to the Buyers without the Intermediary bearing any cost under any and all circumstances.
iv. Any amount payable by the Intermediary to the Provider shall be paid by remittance to the Bank Account Number provided by the Provider in Hong Kong.
v. Any amount payable by the Provider to the Intermediary shall be paid by remittance to the Bank Account Number, 652-461799-001 at the HSBC Corporation in Hong Kong.
vi. Each Party to this Agreement shall pay its own costs of and incidental to the execution and performance of this Agreement.
3. Term and Termination
(a) This Agreement shall be effective from the date of execution thereof and shall remain in force until and unless it is terminated by either Party without reason by giving to the other Party not less than [thirty (30)] business days of prior notice in writing. All paid Listing Fee shall not be refunded in full nor in proportionality.
(b) Any termination of this Agreement howsoever caused shall not affect any rights or liabilities which have accrued prior to the date of termination.
4. Event of Default
(a) Either Party may terminate this Agreement upon occurrence of any of the following events of default (“Events of Default”) on the part of the other Party:-
(i) a material breach of this Agreement and either (a) the breach is not capable of being remedied or (b) if the breach is capable of being remedied but the Defaulting Shareholder fails to remedy that breach within [fourteen (14)] business days of non-defaulting Party sending it written notice requiring it to remedy that breach;
(ii) an order is made, petition presented, resolution passed or meeting convened for its winding-up (or other process whereby its business is terminated and its assets are distributed amongst its creditors and/or shareholders or other contributories) or there are cases or proceedings under any applicable insolvency, reorganization, or similar laws in any relevant jurisdiction or events have occurred which, under applicable laws, would justify any such cases or proceedings;
(iii) a petition is presented or other proceedings are commenced for an administration order to be made (or any other order to be made by which during the period it is enforce, its affairs, business and assets are managed by a person appointed for the purpose by a court, governmental agency or similar body) in relation to it, or any such order been made;
(iv) a receiver (including an administrative receiver), liquidator, trustee, administrator, custodian or similar official is appointed in any jurisdiction in respect of the whole or any part of its business or assets or any step has been taken for or with a view to the appointment of such a person; or
(v) it is insolvent or unable to pay its debts as they fall due.
(b) If an Event of Default occurs, the defaulting Party who is aware of the occurrence of the Event of Default shall give a written notice to the non-defaulting Party within seven (7) business days from it being so aware.
(c) Following an Event of Default, the non-defaulting Party may give a written notice to the Defaulting Party within [thirty (30)] business day of it becoming aware either by itself or by notification by the defaulting Party, whichever is the later, requiring to terminate this Agreement with an effective date of termination specified therein and such effective date could be as soon as effective immediately.
5. No Liaison
Unless for the performance of Services to the Buyer, the Provider shall not liaise in any way directly or indirectly with any user of 2Easy for any purposes including but not limited to selling or procuring to sell its services to such users during the term of this Agreement and for a further period of [three (3)] years after termination thereof except with the written permission of the Intermediary.
6. Intellectual Property Rights
(a) Without prejudice to Clause 1(h), the Intermediary shall own any and all intellectual property rights in the website of 2Easy and all materials on this website, including but not limited to the design, layout, logos, graphics, company name, and texts, whether such materials are its own materials or materials provided by the Provider for the purpose of introducing its business. Subject to the license set out herein, all these intellectual property rights are reserved.
(b) The Intermediary shall grant to the Provider a non-exclusive licence free of charge to introduce his Services to the users of 2Easy for the purpose of attracting business therefrom.
(a) The Provider agrees not to divulge to any user of 2Easy nor any other third party or to use except for the purpose of providing his Services under this Agreement:-
(i) any confidential information of the Intermediary’s business, including without limitation, trade secrets, business plans and financial information, customer data, learned and/or obtained in the course hereof; and
(ii) any confidential information, including without limitation, confidential information contained in any documents, computer programs, proprietary software or any other materials of any nature, provided by the Intermediary to the Provider for the purpose of this Agreement.
(b) This obligation of confidentiality shall not apply to any information which is already disclosed to the public, is already known to the Provider receiving the confidential information or is not identified as confidential information by the Intermediary.
(c) The Parties agree that the terms of this Agreement shall be treated as strictly confidential and without prior written approval of the other Party not to disclose the contents thereof to any user of 2Easy nor any third parties other than as may be disclosed by either Party to prospective and actual financiers, accountants and lawyers giving advice to the Party, or in the course of enforcement of any provision hereof or as required by force of law.
8. Representation, Warranty and Undertaking
(a) The Intermediary represents and warrants that it is a company duly registered and validly existing under the laws of Hong Kong and the execution, delivery and performance of this Agreement will be duly authorized by all necessary company action(s) on its part; whereby upon execution by both Parties, this Agreement will constitute a legal, valid and binding Agreement enforceable against the Intermediary.
(b) In the event that The Provider represents and warrants that it is a company duly registered and validly existing under the laws of Hong Kong and the execution, delivery and performance of this Agreement will be duly authorized by all necessary company action(s) on its part; whereby upon execution by both Parties, this Agreement will constitute a legal, valid and binding Agreement enforceable against the Provider.]
(c) The Provider undertakes that the Services it shall provide to the Buyers shall not infringe or violate any intellectual property rights or other right of any third party. If any third party intellectual property rights are used in and for the provision of the Services, the Provider shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for it and for the Buyer.
(d) The Provider undertakes that it shall provide its Services to the Buyers with reasonable care and skill.
(e) The Provider undertakes that it shall take out sufficient insurance for the purpose of indemnify, defending and holding both Buyers as well as the Intermediary and its respective employees, directors, officers and agents harmless against all liabilities, claims, costs, expenses, damages and losses as set out in the whole of Clause 9 below.
9. Hold Harmless
(a) The Provider shall indemnify, defend and hold the Intermediary and its respective employees, directors, officers and agents harmless against all liabilities, claims, costs, expenses, damages and losses (including any direct and indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Buyers arising out of or in connection with any breach by the Provider, whether or not it is negligent or at fault, including without limitation, the Provider’s representations, warranties and undertakings given to the respective Buyers and in Clause 8 of this Agreement.
(b) For the avoidance of doubt, the Provider shall indemnify, defend and hold the Intermediary and its respective employees, directors, officers and agents harmless against any claim, liability, damages, losses, judgment, and other expense (including but not limited to reasonable attorneys' fees and court costs) awarded against the Buyer(s) and/or the Intermediary by a court of competent jurisdiction pursuant to a final judgment in favor of the owner of any intellectual properties such as patent, copyright, trademark, or trade secret, as a result of any claim of infringement or misappropriation of any such intellectual properties related to the Services of the Provider.
(c) The Provider shall indemnify, defend and hold the Intermediary and its respective employees, directors, officers and agents harmless against all losses, damages, costs and expenses of any nature, including without limitation, reasonable attorney’s fees resulting from or arising out of (i) any claim by reason(s) of injury or death to persons (including but not limited to any of its Buyer), or damage to property, or both; (ii) any claim in connection with its negligence or omission or willful misconduct in the course of providing his Services or otherwise.
The Parties hereunder are two independent and separate entities. Nothing in this Agreement shall be construed as establishing an employment, partnership, joint venture, or similar relationship between the Parties and therefore neither party shall be liable for any obligations incurred by the other Party, except as is expressly provided in this Agreement.
No amendment or supplement to this Agreement shall be valid unless made in writing and signed by all the Parties.
12. No Assignment
No Party shall be entitled to assign this Agreement or its rights or obligations without the prior written consent of the other Party save as expressly provided in this Agreement.
No failure or delay by any Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by any Party of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of that or any other provision of this Agreement.
14. Rights of Third Parties
The Contracts (Rights of Third Parties) Ordinance, (Cap. 623) shall not apply to this Agreement and nothing herein shall create rights to nor impose obligations on any third party under the same ordinance.
15. Force Majeure
Neither party is responsible for any failure to perform its obligations under this Agreement, if it is prevented or delayed in performing those obligations by an event of force majeure. An event of force majeure means an event or circumstance which is beyond the control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected was unable to prevent. Force majeure shall include riot, war, invasion, terrorism, strike, earthquake, flood, fire or other physical natural disaster, etc.
If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
17. Entire Agreement
This Agreement constitutes the entire agreement between the Parties in relation to the matters provided in this Agreement.
Any notice required to be given by any Party hereto to the other Party shall be deemed validly served by e-mail, hand delivery; prepaid registered letter sent through the post or commercial courier to its address given below or such other address as may from time to time be notified for this purpose; or electronic media such as email or facsimile. Any notice served by hand or commercial courier shall be deemed to have been served on delivery; any notice served by prepaid registered letter shall be deemed to have been served 48 hours (72 hours in the case of a letter sent by airmail to an address in another country) after the time at which it was posted; and any notice sent through email or by facsimile shall be deemed to have been served the next day following the successful transmission thereof.
To the Intermediary: 2 Easy Limited
Address: Level 9, Smart Space 3C, Cyberport 3, 100, Cyberport Road, Hong Kong.
To the Provider: As Provided in The Registration Form
Address: As Provided in The Registration Form
Facsimile: [facsimile number]
E-mail: As Provided in The Registration Form
Attention: As Provided in The Registration Form
19. Time is of the Essence
Time is of the essence with respect to all provisions within this Agreement. Any delay in performance by either Party shall constitute a material breach of this Agreement.
20. Resolution of Dispute and Arbitration
In the event of any dispute, controversy or claim (“Dispute”) arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof, the parties shall attempt to resolve such Dispute in good faith through friendly consultation.
21. Governing Law and Jurisdiction
This Agreement shall in all respects be governed by and construed in accordance with the laws of Hong Kong and each of the Parties hereby agrees to submit to the jurisdiction of the courts of Hong Kong Special Administrative Region of the People’s Republic of China.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and to constitute one and the same instrument. Electronic copies of the executed Agreement, including but not limited to those transmitted by facsimile or scanned to an image file, shall be considered originals.
23. Legal Advice
Each of the Parties acknowledges that it has read, understood and accepted the terms and conditions incorporated into this Agreement. Further, both Parties acknowledge that they separately have had an opportunity to seek legal advice of their own choice with respect to the contents hereof and are signing this Agreement of their own free will.
(a) The headings are for ease of reference only and shall be ignored in interpreting this Agreement.
(b) Words and expressions in the singular include the plural and vice versa, words importing one gender include every gender and the neuter.
(c) Reference to a person includes any individual, firm, company, corporation, unincorporated body of persons, state, state agency and public body.
(d) Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such ordinances, statutes, or enactments as may be amended or replaced or re-enacted from time to time and for the time being in force and shall include any subordinate legislation made under the relevant statute.
(e) References to times of the day are to Hong Kong time.
(f) This Agreement shall be construed according to its fair language. The rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have executed the foregoing Service Agreement.
This is an e-agreement. By ticking the agreement, the Provider is bound to and agrees to comply with the Service Agreement.