1. Application
1.1. All Services provided by the Company are subject to the Terms and Conditions of Services set out herein.
1.2. All contracts and agreements entered into between the Company and the Customer shall incorporate the Terms and Conditions of Services.
1.3. The Terms and Conditions of Services are available for inspection at the Company’s website (www.eghk.com) and a copy of the Terms and Conditions of Services is available on request free of charge.
2. Definitions
2.1 Unless the context otherwise requires:
“Advertisement” means the advertising matter to be put up at the Ad Location;
“Advertising Materials” means all materials including the Advertisement or any other materials given to the Company or produced by the Company in relation to the Advertisement (including but not limited to) all artworks, graphics, text or any other contents.
“Ad Location” means the place where the Advertisement is to be put up;
“Ad Period” means the period during which the Advertisement is to be put up;
“Agreement” means the agreement and its schedule(s) incorporating the Terms and Conditions of Services entered into between the Company and the Customer for the provision of Services by the Company;
“Business Day” means a day (other than Saturday) on which banks in Hong Kong are open to conduct business generally;
“Charges” means the charges to be paid by the Customer to the Company in consideration of the Services provided by the Company to the Customer under the Agreement;
“Company” means Easy Group (Hong Kong) Limited;
“Customer” means any person to whom the Company provides Services;
“Hong Kong” means the Hong Kong Special Administration Region of the People’s Republic of China;
“Owner” means the owner and/or person entitled to possession of the Ad Location and/or their respective agents;
“Party” means a party to the Agreement;
“Services” means the services to be provided by the Company to the Customer as set out in the Agreement and may include without limitation: (a) Production, Installation and Dismantling services; and (b) Media Planning, Design, Creative Consultancy and Retainer services;
“Terms and Conditions of Services” means the Terms and Conditions of Services set out herein.
3. Relationship
3.1. The Customer contracts with the Company as a principal notwithstanding that the Customer may be acting directly or indirectly for an advertiser as an advertising agent or media buyer or in some other representative capacity.
3.2 . The Company is and shall at all times remain an independent contractor and not an agent of the Customer unless expressly specified in the Agreement.
3.3. The Company shall have full discretion over the manner in which the Services are performed including the engagement or employment of, without limitation, any subsidiaries or its holding companies or any independent contractors to perform any or all of the Services.
4. Services
4.1 The Company shall, subject to the terms and conditions of the Agreement, provide the Services to the Customer.
5. Charges
5.1 The Customer shall pay the Charges to the Company in accordance with the provisions of the Agreement.
5.2 Any late payment of any Charges by the Customer shall constitute an Event of Default, and default interest at the rate of 3% per month shall accrue on any outstanding Charges from the date of default until full payment.
6. Use of Ad Location, Owner’s Consent and Owner’s Instructions
6.1. The Customer confirms and agrees that it is the Customer’s sole responsibility to obtain a licence or tenancy in respect of the Ad Location from the Owner.
6.2.The Company gives no warranty, representation, or guarantee whatsoever on:
the ownership of or title to the Ad Location;
the legality or fitness of the Ad Location, its structure, equipments, fixtures, fittings, and apparatuses; and
the legality or fitness of the installation and display of the Advertisement at the Ad Location.
6.3.The Customer should seek independent legal and other professional advices on the aforesaid matters and the Company shall not be liable to the Customer for any loss or damage whatsoever arising out of or in connection with the aforesaid matters.
6.4.The Company shall seek the Owner’s consent in respect of the contents of the Advertisement.
6.5.Notwithstanding the failure of the Customer to secure the use of the Ad Location or the refusal by the Owner to give consent in respect of the contents of the Advertisement, the Customer remains liable to pay the Charges to the Company for the entire Ad Period.
6.6.The Customer confirms and agrees that the Company may, without being liable to the Customer for any loss or damage whatsoever, act upon the instructions given by the Owner even if the Customer disagrees of the said instructions. The Customer further confirms and agrees that it shall remain liable to pay the Charges to the Company for the entire Ad Period in such circumstances.
7. Use of Ad Location, Owner’s Consent and Owner’s Instructions where Services is Production, Installation and/or Dismantling services only
7.1.Where the Services to be provided by the Company is Production, Installation and/or Dismantling services only, Clause 6 above shall not apply and instead this Clause 7 shall apply in substitution thereof:
The Customer confirms and agrees that it has obtained a licence or tenancy in respect of the Ad Location from the Owner for putting up the Advertisement for the Ad Period.
The Customer shall be responsible for:
i the legality or fitness of the Ad Location, its structure, equipments, fixtures, fittings, and apparatuses; and
ii the legality or fitness of the installation and display of the Advertisement at the Ad Location.
The Company shall not be liable to the Customer for any loss or damage whatsoever arising out of or in connection with the aforesaid matters.
The Customer shall provide the contact details of the Owner to the Company and the Company shall seek the Owner’s consent in respect of the contents of the Advertisement.
Notwithstanding the refusal by the Owner to give consent in respect of the contents of the Advertisement, the Customer remains liable to pay the Charges to the Company.
The Customer confirms and agrees that the Company may, without being liable to the Customer for any loss or damage whatsoever, act upon the instructions given by the Owner even if the Customer disagrees of the said instructions. The Customer further confirms and agrees that it shall remain liable to pay the Charges in full without any deduction or set-off.
8.Customer’s obligations and warranties
8.1.The Customer shall:
- provide all necessary and/or relevant information, including the nature, description, artwork, graphics and texts for the Advertisement and its instructions in relation thereof, which are essential for the Company’s planning and performance of the Services;
- check the correctness of the Advertisement;
- ensure that the Advertisement is legal, decent, honest and truthful;
- ensure that the Advertisement is free from any offensive or defamatory matter or innuendo, and does not infringe any copyright or other rights; and
- where the Advertisement contains the name or any pictorial representation of any living person and/or of any part of any living person, obtain the authority of such living person for the use of such name or representation in the Advertisement.
8.2.The Customer represents and warrants that:
- the descriptions and particulars of the Advertisement are correct and sufficient and are in such format as the Company may reasonably request;
- it has lawfully obtained the use of the Ad Location with the right to allow the Company to use the Ad Location for the purpose of performing the Services;
- the Advertisement is in all respects in compliance with all government requirements and/or law and regulations of Hong Kong law for the time being in force;
- the Advertisement and the reproduction and/or publication thereof will not breach any contract or infringe or violate any copyright, trademark or any other personal or proprietary rights of any person or render the Company liable to any proceedings whatsoever;
- where the Customer is an advertising agency, it is authorized by the advertiser to place the Advertisement; and
- where the Customer is an advertising agency, arrangements have been made with the advertiser to deal with any commission or discount which the Company may offer to the Customer, and that the Customer will disclose to the advertiser, upon request, full details of any commission or discount which may have been allowed by the Company.
9. Company’s rights to decline Advertisement
9.1.The Customer acknowledges and agrees that the Company shall have the right at its sole discretion to decline to install any Advertisement otherwise accepted by the Owner if in the reasonable opinion of the Company, the installation of such Advertisement will subject the Company to any demand, claims or proceedings by any person.
10. Company’s rights to remove Advertisement
10.1. The Customer acknowledges and agrees that the Company shall have the right (but under no obligation) to remove or dismantle the Advertisement:
in compliance with orders, directions, regulations, requests, or suggestions given by or received from the Government of Hong Kong or by any person purporting to act with the authority of such government; and
in compliance with the directions or instructions given by or received from the Owner.
10.2. The Company shall not be liable to the Customer for any loss or damage whatsoever if the Advertisement is removed or dismantled under this clause.
10.3. If the Advertisement is removed or dismantled under this clause:
the Customer may, on payment of the Additional Charges for Production, Installation and Dismantling services to the Company, request the Company to produce and install a new Advertisement provided it is lawful to do so and the Owner has given its consent to the new Advertisement; and the Customer shall pay the Charges to the Company in accordance with the provisions of the Agreement without any deduction or set-off; or
if the Customer does not request the Company to produce and install a new Advertisement, the Agreement is deemed to have been terminated by the Customer; and the Customer shall remain liable to pay the Charges to the Company for the entire Ad Period, or if the Services to be provided by the Company is Production, Installation and/or Dismantling services only, the Customer shall remain liable to pay the Charges to the Company without any deduction or set-off.
11. Bad Weather
11.1.In case of bad weather (including but not limited to the issuance of typhoon Signal No. 8 Warning or the Black Rainstorm Warning by the Government) and/or if in the reasonable opinion of the Company, the installation works of the Advertisement may be at risk, the Company reserve the right (but under no obligation) to temporarily postpone the installation works.
11.2.In case of bad weather (including but not limited to the issuance of typhoon Signal No. 8 Warning or the Black Rainstorm Warning by the Government) and/or if in the reasonable opinion of the Company, the structure of the Advertisement may be at risk, the Company reserve the right (but under no obligation) to temporarily dismantle the Advertisement and, if applicable, reinstall the same after such bad weather or reasonable risks cease to exist. If the Company chooses to do so, the Customer shall pay an additional fee to the Company equivalent to half of the Charges for Production, Installation and Dismantling services.
11.3.The Company shall not be liable to the Customer for any loss or damage whatsoever arising from the exercise of the right under this clause.
11.4.Notwithstanding the exercise of the right under this clause, the Customer shall pay the Charges to the Company in accordance with the provisions of the Agreement without any deduction or set-off.
12. Insurance
12.1.The Customer confirms that it has been advised to, and will if deemed fit, take out sufficient and suitable insurance policies at its own expenses covering all risks of liability in respect of the Advertisement and of the Ad Location. The Customer acknowledges and confirms that any insurance policy that may be taken out by the Company will not extend to cover the Customer’s risks or liabilities.
13. Payment of Charges notwithstanding damage
13.1.The Customer confirms and agrees that notwithstanding any damage to the Advertisement, the Customer shall remain liable to pay the Charges to the Company in accordance with the provisions of the Agreement without any deduction or set-off.
14. Ownership of Advertising Materials
14.1.All Advertising Materials will be the Customer’s property provided that the Company shall not be responsible for any damage or loss while the Advertising Materials are in the possession of the Company.
14.2. If any Advertising Materials in the Company’s possession is not collected by the Customer within 28 days from the expiration or sooner determination of the Agreement then the same shall become the Company’s property and may be disposed of in such manner as the Company decides.
15. Confidential information
15.1. The Customer shall treat the contents of the Agreement and any confidential information received and/or retained by the Customer from the Company in connection with the Agreement as confidential at all times. Except as (a) expressly authorized by the Agreement, (b) authorized by the Company in writing, or (c) required by law or by an order of a competent Court or Tribunal, the Customer agrees to keep any confidential information on a confidential basis and to disclose to no one except for the performance of the Agreement either during the continuance of the Agreement or after the expiration or sooner determination of the Agreement without limit in point of time.
16. Force majeure
16.1. If due to war, strikes, industrial action short of strike, lockouts, accidents, fire, blockade, natural catastrophes or other obstacles over which the Company has no control, the Company fails to provide the Services in the manner and within the time required by the terms of the Agreement, the Company shall not be held responsible for any loss or damage which may be suffered by the Customer as a result of such failure.
17. Indemnity
17.1. The Customer will indemnify the Company and agrees to keep the Company indemnified against all claims, costs, proceedings, demands, losses, damages, expenses, duties, taxes, fines, penalty or liability whatsoever arising directly or reasonably foreseeable as a result of:
the exhibition or publication of the Advertisement or anything done in relation thereto; and
any breach or non-performance of any of the representations, warranties or other terms and conditions in the Agreement or implied by law;
17.2.The Customer shall defend, indemnify and hold the Company harmless against any claim or liability (and any expenses arising therefrom) arising from the performance of the Services insofar as such claim or liability exceeds the Company’s liability under the Agreement.
18. Exemptions of Liability
18.1.In addition to every exemption or immunity whatsoever that the Company is entitled to be benefited under the Agreement, the Company shall in any event and in all cases whatsoever be relieved of liability for any loss or damage if such loss or damage was caused by or resulted from but not limited to:
the wrongful act or negligence of the Customer;
compliance with the instructions of the Customer or any person entitled to give them;
wrongful, false, incorrect, inaccurate or insufficient description of Advertisement or other particulars declared by the Customer in relation to the Advertisement;
inherent vice and/or ordinary wear and tear of the Advertisement;
pre and post-Services loss and/or damage;
fire, unless caused by the actual fault of the Company; and
any cause or event which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
18.2.Unless otherwise specially provided, time shall not be of the essence in relation to the Services; and the Company shall not be liable for any delay in, or omission of, publication or transmission or any error in any Advertisement.
18.3.The Company shall in no circumstances be liable for direct, indirect or consequential or economic loss including, without limitation, loss of profits and/or loss of market, and/or damage whatsoever and howsoever caused.
19. Limitation of Liability
19.1.To the extent that the Company’s liability is not excluded or exempted, the liability of the Company in respect of any claims for loss or damage or in connection with the Services or the Advertisement howsoever arising shall not exceed the sum of HK$500,000 or the Charges, whichever is the lower.
20. Events of Default
20.1.Each of the following events and circumstances shall be an Event of Default:
the Customer fails to pay the Charges in accordance with the terms and conditions of the Agreement or is in breach of any terms and conditions of the Agreement;
any representation, warranty made or deemed to have been made by the Customer in or in connection with the Agreement proved to have been incorrect or misleading; and
petition is presented or a proceeding is commenced or an order is made or an effective resolution is passed for the winding-up insolvency, administration, reorganization, reconstruction, dissolution or bankruptcy of the Customer or for the appointment of a liquidator, receiver, administrator, trustee or similar officer of the Customer or of all or any part of its business or assets.
20.2.Upon the happening of an Event of Default, the Company may by notice terminate the Agreement forthwith.
21. Termination
21.1. The Agreement shall commence on the date set out thereof and, unless otherwise terminated or deemed to have been terminated pursuant to other terms of the Agreement, shall expire on the last day of the Ad Period.
21.2. In the event of early termination or deemed termination of the Agreement pursuant to other terms of the Agreement:
the Company’s obligations thereunder shall cease and determine;
the Company shall have the right (but under no obligation) to remove or dismantle the Advertisement; and
without prejudice to the Company’s rights to claim further damages, the Customer shall pay, within 7 days upon the Company’s written demand, to the Company the balance of the Charges for the entire Ad Period together with default interests, if any.
22. Entire Agreement
22.1.The Agreement constitutes the entire agreement between the Company and the Customer and supersedes all previous agreements and understandings between them. There are no warranties, representations or agreements between the Company and the Customer in connection with the subject matter of the Agreement except as specifically set forth or referred to in the Agreement or otherwise agreed to by the Company and the Customer in writing.
23. Costs
23.1.The Company and the Customer shall bear their own costs arising out of the preparation, negotiation and execution of the Agreement.
24.Assignment
24.1.Neither the Customer nor the Company shall assign any of its rights or obligations under the Agreement.
25.Variation
25.1.Unless stated otherwise in the Agreement, all additions, deletions, amendments, or modifications to the Agreement must be made in writing and signed by both the Company and the Customer.
26. Variation
26.1. No failure or delay by the Company in exercising any right, power or remedy under the Agreement shall impair such right, power or remedy or operate as a waiver thereof, nor shall any single or partial exercise of the same precludes any further exercise thereof or the exercise of any other rights, powers or remedies. The rights, powers and remedies provided under the Agreement are cumulative and do not exclude any other rights, powers and remedies provided by law. In the event of any part of the Agreement being or becoming void, illegal or unenforceable, that part shall be severed from the Agreement to the extent that all the remaining parts shall remain in full force and be unaffected or impaired thereby.
27. Notices
27.1.Every notice, demand or other communication to be given or made under the Agreement shall be in writing and delivered by hand or sent by prepaid mail to the relevant Party at its address or delivered by fax to the fax number set out in the Agreement (or such other address or fax number as the addressee has by five (5) consecutive days’ prior written notice specified to the other Party).
27.2. Any notice, demand or other communication so addressed to the relevant Party shall be deemed to have been delivered (a) on the date of delivery if delivered by hand; or (b) two (2) Business Days after the date of posting if sent by prepaid mail; or (c) if delivered by fax, when dispatched (with confirmed transmission report).
27.3.In addition to other modes of service permitted by law, service of writs or other processes may be duly effected on a Party by hand-delivery at, leaving at, or sending by prepaid mail to, that Party’s address set out in the Agreement (or such other address as that Party has by five (5) consecutive days’ prior written notice specified to the other Party).
28. Governing Law and Jurisdiction
28.1. The Agreement shall be governed by and construed in accordance with the laws of HKSAR, without regard to any conflict of law provisions. The courts of HKSAR shall have exclusive jurisdiction in relation to any claim or dispute concerning this agreement.