Terms & ConditionsUpdated 17 May, 2022
The following terms and conditions, together with any referenced documents (collectively, the "Agreement") are a legal agreement between you and your employees, agents, contractors and any other entity on whose behalf you accept these terms (collectively, “you” and “your”), and Mioying Financial Technology (HK) Limited (“MioTech”, “us”, “our” or “we”) for provision of MioTech's ESGHub platform and other services.
IMPORTANT: PLEASE READ THIS DOCUMENT CAREFULLY. BY CHECKING A BOX CAPTIONED WITH ACCEPTANCE LANGUAGE OR CLICKING AN ICON BEARING AN “AGREE” OR SIMILAR LEGEND OR BY OTHERWISE ELECTRONICALLY SIGNING THIS AGREEMENT, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO, OR IF YOU DO NOT HAVE AUTHORITY TO ENTER INTO, THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT USE THE SERVICES.
“Affiliate” means, with respect to either party, any entity that directly or indirectly controls, or is controlled by, or is under common control with that party.
“Documentation” means MioTech’s online user guides, documentation, and any other help and training materials that MioTech provides or makes available to you, as updated by MioTech from time to time.
“ESGHub” means the online software-as-a-service (SAAS) platform offered by MioTech which streamlines ESG data collection, analysis, and reporting.
“Order Form” means the order for the Service through an online or offline ordering document or agreement specifying the subscription of the Service to be provided under this Agreement that is entered into between you, on the one hand, and MioTech or any of its Affiliates, on the other hand, including any exhibits, schedules, addenda, and supplements thereto.
“Service” means the on-line, web-based ESGHub and associated applications and content or other related services provided by MioTech to you from time to time.
2. Limited License
2.1 During the Term (as defined in Section 10), MioTech grants to you a personal, non-transferable (except as provided herein), non-exclusive, non-sublicensable, limited-scope, term license to use, in accordance with this Agreement, the ESGHub and the Service.
2.2 Customer may use ESGHub and the Service only in the ordinary course of its business operations and only for its own internal business purposes.
3. Delivery and Acceptance
3.1 The ESGHub and the Service will be made available by MioTech to you as a service accessible via the internet. MioTech will generate an account for you to setup login details. MioTech reserves the right to reject account registrations or terminate the account it deems inappropriate. You shall be deemed to have accepted the ESGHub and the Service under this Agreement on the day when the account is provided to you by MioTech.
4.1 Unless expressly authorized under this Agreement, you will not, and you will not allow or assist any third party to: (i) make the ESGHub or the Service available to anyone other than authorized users or use the ESGHub or the Service for the benefit of anyone other than you; (ii) sell, resell, license, sublicense, distribute, make available, rent, or lease the ESGHub or the Service; (iii) use the ESGHub or the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iv) use the ESGHub or the Service to store or transmit malicious code; (v) interfere with or disrupt the integrity or performance of the ESGHub or the Service contained therein; (vi) attempt to gain unauthorized access to the ESGHub or the Service or any related systems or networks; (vii) permit direct or indirect access to or use of the ESGHub or the Service in a way that circumvents a contractual usage limit or in a manner that violates this Agreement; (viii) modify, copy, or create derivative works based on the ESGHub or the Service or any part, feature, function, or user interface thereof; (ix) frame or mirror any part of the ESGHub or the Service; (x) access the ESGHub or the Service for purposes of monitoring its availability, performance, or functionality or for any other benchmarking or competitive purposes; or (xi) disassemble, reverse engineer, or decompile the ESGHub or the Service, or access the ESGHub or the Service to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions, or graphics of the ESGHub or the Service, or (3) copy any ideas, features, functions or graphics of the ESGHub or the Service.
5. Your Responsibilities
5.1 You represent, covenant, and warrant that you will use the ESGHub or the Service only in compliance with MioTech's standard published policies then in effect and all applicable laws and regulations. You hereby agree to indemnify and hold harmless MioTech against any damages, losses, liabilities, settlements and expenses in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of the ESGHub or the Service. Although MioTech has no obligation to monitor your use of the ESGHub or the Service, MioTech may do so and may prohibit any use of the ESGHub or the Service it believes may be (or alleged to be) in violation of the foregoing.
5.2 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the ESGHub or the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Customer Equipment"). You shall also be responsible for maintaining the security of the Customer Equipment, account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of account or the Customer Equipment with or without your knowledge or consent. Whenever MioTech's performance of this Agreement is dependent on you furnishing MioTech with appropriate information, personnel or materials, you will furnish and process all such information, personnel and/or materials in an accurate and timely fashion.
5.3 You shall ensure that only your authorized employees or contractors (other than competitors of MioTech) access the ESGHub or the Service and only for your internal business purposes, unless with MioTech’s prior written consent. If you permit any person or entity to use the ESGHub or the Service who or which is not properly authorized under this Agreement to use the ESGHub or the Service, MioTech shall be entitled to terminate this Agreement with immediate effect without prejudice to any other rights or remedies available to it.
6. Representations and Warranties
6.1 You represent and warrant that (i) you are financially solvent and has the requisite legal right, power, and authority to enter into this Agreement and to grant the rights you purport to grant hereunder and to perform your duties and fulfill your obligations hereunder; (ii) all information and data provided by or on behalf of you or any user in connection with this Agreement is and will be, accurate, complete, and correct in all material respects to the best of your ability, knowledge, and belief; and (iii) you shall obtain any and all necessary consents in order for MioTech and its Affiliates to host, copy, display, and use your information or data to provide the Service.
6.2 MioTech warrants that (i) MioTech is financially solvent and has the requisite legal right, power, and authority to enter into this Agreement and to grant the rights we purport to grant hereunder and to perform our duties and fulfill our obligations hereunder; (ii) the ESGHub or the Service will not, to MioTech’s knowledge, contain any malicious code, and (iii) the ESGHub or the Service will perform materially in accordance with the applicable Documentation and MioTech shall use reasonable efforts consistent with prevailing industry standards to maintain the ESGHub or the Service in a manner which minimizes errors and interruptions in the ESGHub or the Service and shall perform support in a professional and workmanlike manner.
6.3 The ESGHub or the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MioTech or by third-party providers, or because of the Force Majeure under the Section 12 hereinafter, but MioTech shall use reasonable efforts to provide advance notice of any scheduled service disruption.
6.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, (I) MIOTECH MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT; AND (II) THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT ANY FURTHER WARRANTIES OF ANY KIND. MIOTECH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MIOTECH DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES OR ANY SOFTWARE, CONTENT, DOCUMENTATION, OR OTHER MATERIALS PROVIDED BY MIOTECH, ITS AFFILIATES, OR THEIR RESPECTIVE CONTRACTORS OR AGENTS ARE OR WILL NECESSARILY BE COMPLETELY ACCURATE, CURRENT, COMPLETE, CONTINUOUSLY AVAILABLE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH CUSTOMER MAY CHOOSE TO PUT THEM. MIOTECH DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES, OR THAT THE OPERATION AND USE OF THE SERVICES, WILL BE ENTIRELY WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE; OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED.
7. Proprietary Rights
7.1 Customer shall own all right, title and interest in and to Customer Data. Notwithstanding anything to the contrary, MioTech shall have the right to collect and analyze Customer Data relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and you hereby grants to MioTech a perpetual, non-exclusive license (during and after the term hereof) to, at no charge, (i) use such Customer Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other MioTech offerings, and (ii) disclose Customer Data solely in aggregate or other de-identified form in connection with its business.
7.2 You acknowledge and agree that MioTech shall own and retain all right, title and interest in and to (i) the ESGHub or the Service, all improvements, enhancements or modifications thereto, (ii) any data, software, architecture, algorithms, applications, inventions or other technology underlying the ESGHub or the Service or developed in connection with support, (iii) all Intellectual Property Rights related to any of the foregoing. You shall comply with all reasonable requests made by MioTech to protect the Intellectual Property Rights of MioTech. For the purposes of this Agreement, "Intellectual Property Rights" means all industrial and intellectual property rights (including, but not limited to, patents, copyrights, trade secrets, database rights, design rights, goodwill and trade mark rights), whether registered or not, and including applications for registration thereof, rights in know-how and moral rights.
8.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose confidential information including but not limited to the business, technical or financial information relating to the Disclosing Party (hereinafter referred to as "Confidential Information" of the Disclosing Party). Confidential Information of MioTech also includes non-public information regarding features, functionality and performance of the ESGHub or the Service, MioTech's physical security system, access control system, telecommunications network, and all documentation and manuals provided or made available by MioTech in connection with the ESGHub or the Service. Confidential Information of you also includes non-public data provided by you to MioTech to enable the provision of the Service ("Customer Data").
8.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of this Agreement or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law, regulations or judicial/regulatory body.
8.3 Notwithstanding anything to the contrary herein, if you consent to publish or share your Customer Data or other information with designated parties; you are responsible for any content you post to our platform and the consequences of sharing or publishing such content with other parties or the general public. MioTech is not responsible for the consequences of the sharing or publishing of your Customer Data or information on our platform. MioTech shall not be liable for any losses or damages in connection with the use of the Customer Data or information shared or published by you.
9. Fees and Payment
9.1 You will promptly pay all fees associated with the Service, as set forth in the applicable Order Forms (the “Fees”). Except as otherwise specified herein or in an Order Form, (i) Fees are based on Service purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Term. Unless otherwise agreed in advance in writing, out-of-scope services will be charged on a time and materials basis at MioTech’s then-applicable rates.
9.2 Fees are exclusive of all taxes, levies, or duties imposed by relevant tax authorities and you shall be responsible for payment of all such applicable taxes, levies or duties.
9.3 You are responsible for providing complete and accurate billing and contact information to MioTech at the time of executing the Order Form and for notifying MioTech of any changes to such information over time.
10. Term and Termination
10.1 Unless otherwise stated or agreed by both Parties, access to the ESGHub and the Service shall commence on the date you execute the first Order Form (“Commencing Date”) and continue until either terminated in accordance with Section 10.2 or twelve months after the Commencing Date.
10.2 A party may terminate this Agreement for cause (i) immediately upon notice in the event of the other party’s material breach of this Agreement that remains uncured for thirty days following notice from the non-breaching party, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
10.3 Upon termination or expiration of this Agreement for any reason, all rights and licenses granted to you to access and use the ESGHub and the Service will automatically terminate and be revoked.
11. Indemnity and Liability
11.1 MioTech will indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, or costs (“Losses”) resulting from any third-party claim, suit, action, or proceeding (“Claim”) that the Service as provided to you, or any use of the Service in accordance with this Agreement, infringe or misappropriate such third party’s Intellectual Property Rights. If such a Claim is made, MioTech may, at its sole option and expense, to (i) modify or replace the Service, or components or parts thereof, to make it non-infringing, or (ii) obtain the right for you to continue use the Service. If MioTech determines that neither alternative is reasonably available, MioTech may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice, and refund you any prepaid or unused fees covering the remainder of the Term of the terminated Order Form.
11.2 Except as prohibited by law, you will indemnify, hold harmless, and, at MioTech’s option, defend MioTech from and against any Losses resulting from any third-party Claim alleging or based on: (i) infringement or misappropriation of any third party’s Intellectual Property Rights arising out of or resulting from the data or any other materials provided by you; (ii) your use of the Service in an unlawful manner or in violation of this Agreement and/or the Documentation; (iii) your use of the Service in combination with data, software, hardware, equipment or technology not provided by MioTech or authorized by MioTech in writing; or (iv) modifications to the Service not made by MioTech.
11.3 Notwithstanding anything to the contrary, MioTech and its officers, affiliates, representatives and employees shall not be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond MioTech's reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the Fees paid or payable by you to MioTech for the Service under this agreement, in each case, whether or not MioTech has been advised of the possibility of such damages.
12. Force Majeure
12.1 You and MioTech shall not be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, epidemic, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.
13. Press Release
13.1 MioTech may, at its option, announce and publicize that MioTech and you have entered into an agreement relating to the utilization of the ESGHub and the Service herein.
14.1 The relationship between you and MioTech is an independent contracting relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind MioTech in any respect whatsoever.
14.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.3 This Agreement is not assignable, transferable or sublicensable by you except with MioTech's prior written consent. MioTech may transfer and assign any of its rights and obligations to its Affiliate under this Agreement without consent.
14.5 This Agreement is governed by the laws of Hong Kong. You hereby agree to submit to the exclusive jurisdiction of the Hong Kong courts in the event of any dispute.
14.6 MioTech may give any notice or other communication by electronic mail (using the electronic mail address contained in MioTech’s records) or posting it on the website. Each such notice or other communication shall deemed to have been given when actually received by you in the case of delivery by hand, courier, mail or electronic mail, as applicable, or immediately upon your first entering the website after such notice or other communication has been posted on the website by MioTech.