ONETALKX is a business management platform. We introduced some TERMS so that we can all be clear about how we can work together.
PART A - MEMBERS
1.1 In these Terms of Trade ("terms"), references to "you" and "your", are references to You; being any User (“user” - also referred to as “member”) of the Site. References to "we", "our" and "us" are references to ONETALKX ("OTX"). These Terms shall form a contract between You and OTX (the "parties"), and any Goods or Services supplied to You shall be subject to the Terms set out below, notwithstanding anything that may be stated to the contrary in Your enquiries or Your order.
1.2 "Goods" shall mean anything sold to You by Us, as more particularly described in any one or more of the relevant order forms, packing slips or invoices (or its equivalent, whatever called) relating to those Goods, on the basis that each such document shall be deemed incorporated in, and form part of these Terms.
1.3 “Services” shall mean any use of the Site, whether free or on payment of a charge, including the provision of the platform and technology for Members to engage in commercial or non-commercial activities.
1.5 OTX provides the Site; being a business management platform which facilitates networking, promoting and trading between Members; whether buying, selling, or connecting. Members establish an Account (“account”) on the Site which will permit these activities to be undertaken.
1.6 Members are able to purchase, and sell on the Site. Some Members will act as Agents ("AGT") OTX. AGT promote both the Site and Our Services, and the Services and Goods of Members for financial gain. We may appoint qualifying Account Managers to manage groupings of members within Regional Offices.
1.7 Community Organisations (“CO”) register on the site to engage in fundraising activities. OTX shall solely determine which COs qualify to use the Site, and a general guide to determine acceptability of the CO is the nature of the causes promoted by COs - and whether they provide a tangible, healthy, wholesome benefit to members of the wider-community.
1.8 Accounts will require to be approved by OTX prior to use and such approval may be withdrawn at any time and without notice.
1.9 Transactions between Members are subject to those individual Member’s particular terms. Members wishing to conduct business with other Members should seek clarification of each specific Member’s Terms directly; as published under each Member’s profile on the Site, or more specifically; on any offer for sale by that Member.
1.10 AGT Accounts on the Site, and associated benefits are not transferable to any third party without our express written permission. Upon Your death or the cessation of your business, or the termination of your account with Us, Your account will be suspended, and no longer accrue benefits. Benefits accrued until the date of suspension shall be paid out in accordance with Our general Terms.
1.11 We may contact AGT from time to time in order to transfer funds to You. If we are unable to make contact with You using your registered contact details for a period of one year from the time of the initial attempt at contact, We shall permanently forfeit any funds accrued in Your account.
1.12 Access to Your Account is made by User Name and Password. Your Username is in the form of an email address. Replacement Passwords can be requested, and will be sent by email to your Username. Your Username is key to accessing Your account. We will not manually reset Your Username at any time. Should you lose Your Username you will not have access to Your account or accrued benefits.
1.13 If any part of a particular contract between the Parties is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of the particular contract which shall remain in full force and effect.
1.14 No failure, delay or indulgence by OTX in exercising any power or right under this contract shall operate as a waiver of such power or right, nor shall a single or partial exercise of any such power or right preclude further exercises of that power or right or the exercise of any other power or right under any contract between the Parties.
1.15 The Parties may execute any agreement by copying a facsimile of the agreement and executing that copy. The electronic transmission of the facsimile by each Party of a signed counterpart copy of the agreement to the other Parties shall be deemed proof of signature of the original and the signed facsimile so transmitted shall be deemed an original for the purposes of this agreement.
1.16 You agree that You are aged 18 years or older, and have authority to create the account for any business or organisation that you represent. You further agree to use Your legal name in the registration and operation of Your Account.
1.17 You agree to register on the Site using your real legal name. Multiple profiles can be created in association to your registered name.
1.18 All contracts between the Parties shall be governed by and construed in accordance with the law of Hong Kong.
2 PRICE & ORDERS
2.1 Prices are stated by default in United States Dollars (USD). The price of Goods or Services will be confirmed on Your Sales Order or Invoice.
2.2 If the price of any Goods has changed from the time You placed the order, OTX will advise You and You will have the opportunity to cancel Your order or accept the current price.
2.3 All prices for Goods or Services supplied by OTX are stated inclusive of taxes, and duties unless otherwise specifically stated to the contrary.
2.4 OTX reserves the right to refuse any order or any part of an order.
2.5 Restricted Goods, such as tobacco and alcohol, will only be sold to Members that are legally permitted to buy such Goods. Proof of age may be required to be produced to OTX or any third party Member making the sale; in order to prove that the Purchaser is of legal age and permitted by law to make such a purchase. Failure to satisfy this condition may result in the cancellation of Your order.
2.6 The Site permits orders to be made with our International Supply Hubs. International and domestic freight costs for the delivery of Goods should be determined by both Parties before concluding any transaction.
2.7 While many Services are provided to You without charge, some Services are provided to You on the basis of a charge. Members will pay fees to Us for these specific Services as detailed on the Site. Fees may change without notice. The fees listed on the Site shall form part of these Terms.
2.8 Methods of payments to and from Member and AGT’s Accounts shall be determined by Us.
3.1 Unless You have previously arranged credit facilities with OTX, You are required to pay for Goods or Services in advance and before dispatch.
3.2 Clause 9 details issues relating to refunds for Goods under warranty. Clause 7.5 details the OTX policy on returning Goods. If a deal is cancelled by OTX, for any reason, the price of the Goods or Services will be refunded to you in full.
3.3 Payments received may be required to be cleared for payment before dispatch of Your order or the delivery of services.
3.4 In the case that OTX has agreed in writing to extend a line of credit to You, You shall pay for the Goods under the specific terms of such credit arrangement.
3.5 OTX has the sole right to determine the amount of credit offered to You and may withdraw this offer of credit at any time and for any reason.
3.6 Any act of insolvency by You will result in the cancellation of Your credit facility, and all amounts owing to OTX shall become due immediately.
3.7 In the event that OTX elects to cancel any credit arrangement with You, You agree to pay immediately any amount owing to OTX at the time of such cancellation and in the event of You becoming insolvent, Your credit line will immediately be cancelled and all amounts owing to OTX will become due immediately.
3.8 You agree to pay for the Goods without deduction or set-off.
3.9 If full payment is not received on or before the due date, a late payment fee at Our standard rate as advertised on the Site will be incurred by You (being not less than 30 USD), and OTX reserves the right to charge interest on any overdue amount. Interest shall be calculated at 24% per annum, and such interest charges shall compound on a daily basis on any balance owing until paid in full. A further late payment fee at Our standard rate as advertised on the Site will be incurred by You (being not less than 30 USD) for every additional month, or part month, that the payment is overdue, with interest as an additional charge.
3.10 OTX reserves the right to charge You for reasonable legal costs and collection fees incurred in settling unpaid accounts and such costs and fees shall be payable over and above any amount owed to OTX.
3.11 You guarantee payment for all purchases made on the Your account.
3.12 We may apply any payments received from You or on Your behalf in reduction of the monies owing to Us in such order and manner as We think fit (despite any direction to the contrary and whether before or after any breach of these Terms).
3.13 We may choose to not accept certain payments for Goods should the payment method for any reason be unacceptable to Us.
3.14 Any payment we make to You will be an amount less any associated costs incurred in both collecting and making that payment; including, but limited to merchant account fees, bank transfer and currency exchange costs.
3.15 If the funds that have been deposited in Your account with OTX have not been used for a period of one year, OTX will make every effort to contact You to clarify Your intention in regards to those funds. If OTX is unable to contact You, Your funds will be treated as abandoned, and if those funds are valued at in excess of $100, will be distributed to any nominated Community Organisation You may have selected at the rate of 50%, while the other 50% will be transferred to OTX to be used in general operational purposes, otherwise if those funds are valued at up to $100, those funds will be transferred to OTX in their entirety.
4 RISK & DELIVERY
4.1 If Goods are lost or damaged while in transit to You, You should engage with the Member who made the sale to You, who should assist You to make a claim directly with the actual carrier of those Goods. OTX shall provide reasonable assistance in making such a claim.
4.2 You agree to pay delivery costs for purchases. Should additional amounts of freight be required to be paid from that initially advertised (due to some unforeseen circumstance), these shall be advised to You prior to the Goods being dispatched. If You do not agree to pay any additional amount for freight, the order may be cancelled and any funds paid returned to You.
4.3 Any claim for shortages in delivery or damage to the Goods sold to You by OTX must be made in writing within 5 business days of receiving the Goods, otherwise, We will not accept liability for any claim.
4.4 We will use all reasonable efforts to ensure that the Goods are delivered on time, but We shall not be liable for any loss arising from any delay in delivery. Delay in delivery shall not entitle You to cancel the order.
4.5 In the event that We elect to deliver the Goods by installment, each installment shall be deemed to be a separate contract. Each installment of an order shall be paid for on the basis that an installment is a new order.
4.6 When Goods are supplied on an international basis, OTX shall generally attend to and satisfy local import statutory requirements; duties, taxes or other miscellaneous requirements. However, each order will state the basis of shipping terms.
4.7 We recommend that You consult with Your insurance company to arrange insurance for product in transit.
5.1 Ownership of the Goods We supply You will remain with OTX until OTX receives payment in full for the purchase price of the Goods and all other associated amounts.
5.2 If You sell or use the Goods before title in the Goods has passed to You, You agree to hold the proceeds of the sale received by You (in whatever form) in trust for the benefit of OTX. OTX's interest as beneficiary under that trust shall not exceed all amounts the Purchaser owes to OTX.
5.3 Until all monies owing by You to OTX have been paid, You shall store Our Goods so they are able to be separately identified, and You irrevocably give Us and Our agents the right to enter the premises where the Goods are held, to remove any of the Goods supplied and resell them. You agree to indemnify Us (and Our agents) against any liability incurred in connection with such entry and removal.
6 SECURITY INTERESTS AND ASSIGNMENTS
6.1 You shall not transfer, assign or create any security interest over, or deal in any manner with the benefit or burden of this Contract without first obtaining Our written consent.
7.1 OTX restricts warranties to those Goods supplied directly from Us to You. Goods supplied to You from Members are subject to the specific warranty provided by the individual Member providing Goods to You. OTX does not offer additional warranties on Goods sold to You by Members.
7.2 Any Goods sold directly by OTX as stock clearance Goods, excess stock, or factory-direct deals will not qualify for any warranty. Goods sold under this clearance type category are not guaranteed to be suitable for the purpose for which they were purchased. Stock clearance Goods, or factory-direct deals are excess Goods being cleared from manufacturer’s inventories and no quality control is undertaken, and therefore, all risk is borne by the Purchaser. You will be notified on the full item description area of that listing if such an item falls under this category.
7.3 No warranty claim shall not be accepted by OTX if the Goods have been damaged during transit, or have been damaged by mishandling, misuse, improper installation, unauthorized repair or cleaning, modification, used with incompatible hardware or software, have been used on a commercial basis (if such restriction is in place), or have been used outside the operating specifications as advised by OTX.
7.4 In the event of You returning Goods to OTX under a warranty claim, You shall be responsible for paying all costs associated with returning the Goods to OTX, including, but not limited to return freight costs.
7.5 You must adhere to Our Returned Merchandise Authority “RMA” process in order to return any Goods for repair, replacement or return. We reserve the right to repair the Goods, or replace the Goods with an equivalent model or item. We maintain the right to provide a cash refund for Goods that qualify for repair or replacement under this warranty provision.
7.6 Should You have any unauthorized amounts owing to OTX, any warranty previously given for purchases of Goods, by default, is withdrawn and deemed null and void. Should You pay to OTX this unauthorized debt, the remaining period of the warranty will be reinstated for any of the Goods You have previously purchased.
7.7 We reserve the right to withdraw or terminate any service at any time, including the Site (in whole or in part) for any reason whatsoever. We may also withhold, suspend, restrict or terminate any service under this agreement at any time if You do not meet a responsibility of Yours under this agreement. We may suspend or restrict any service at any time if we think it reasonable or necessary. Normal charges continue to apply during any suspension or restriction unless We state otherwise.
8 INTERNET SITE & PASSWORDS
8.1 OTX maintains the internet website site www.onetalkX.com (the "Site") for Your use. Your use of the Site is solely at Your own risk. We recommend that You safeguard Your Username and password. Never write down Your password. Never give Your password to another User. Should You believe Your password has become known by others, You must change it on the Site without delay.
8.2 You must maintain the accuracy of the information about Your Goods, Services and Member profile details on the Site. As OTX does not independently verify the accuracy of Member’s listings of Goods and Services, or other general information postings. OTX makes no warranty regarding the accuracy of such information displayed on the Site, and specifically disclaims any liability or responsibility for errors or omissions in the content of the Site, or the unlawful use of the Site.
8.3 OTX assumes no responsibility, and shall not be held liable for, any damages stemming from the use of the Site (including access to, use of, or browsing of the Site, or Your downloading, browsing or uploading of any materials, text, images, video, audio data or other data from the Site).
8.4 OTX assumes no responsibility, and shall not be held liable for any damages stemming from the use of the content of any site linked to or from the Site. Such links are provided for Your convenience only and should not be considered to be an endorsement of the site owner or sponsor, or the content of such sites.
8.5 Materials displayed on the Site are either used with permission from their respective owners, or are the property of OTX. The use of these materials by You, or anyone authorised by You, is limited to the extent permitted by these Terms. Any unauthorised use of the materials contained in the Site may infringe upon copyright laws, trademark laws, and laws of privacy and publicity. Trademarks displayed in the Site are the property of their respective owners. Nothing contained in the Site should be construed as granting permission to use any trademark.
8.6 Features and specifications of Goods or Services described in the Site are subject to change without notice. All images of Goods are indicative only and may vary in part from the actual Goods supplied to You.
8.7 Upon the establishment of an Account, You will create a login identity in the form of an email address, and a password to enable access to the Site.
8.8 You agree to be solely responsible for storing the login identity and associated password in a secure manner. You further agree that any order for Goods placed with OTX via the Site, where a successful login has been established, will be deemed to be an order duly authorized by You.
8.9 OTX will only store the encrypted form of Your password (the original form of Your password will not be known to OTX).
8.10 We do not store Your credit card details. Credit card transactions are processed by secure approved and verified credit card transaction companies. These transactions take place in an encrypted environment ensuring the safeguarding of Your important banking details.
8.11 You shall not misuse the Site and shall refrain from posting unsuitable material, or language on the Site. Offers for Goods or Services on the Site will be deemed to be objectionable if that offer breaches the law (including but not limited to - listing stolen Goods, Goods that have been illegally imported or would require illegal importing or exporting in order to complete the transaction, unsafe Goods or Services, or anything which infringes copyright or other intellectual property rights), is of a defamatory, pornographic, or racially or ethnically objectionable in nature, or is of a sexual nature - including adult toys. Objectionable language and unauthorised use of the site includes engaging in spam, non-approved advertising of any kind, use of abusive or poor language, nudity, hate speech, extreme violence, or content of poor taste of any kind. OTX shall determine if such Goods and Service offers, content, language or actions are inappropriate and shall remedy any breach in any way We see fit, including suspending Your Account, or permanently closing Your Account, and/or contacting law enforcement authorities; and making available information and data from the Site to assist in enquiries involving breaches of any law. OTX may delete or modify any information posted on the Site at any time without prior consultation with any Party.
8.12 We do not guarantee that You will have continuous access to the Site; due to occasional and unforeseen technical issues occurring, however, We maintain full commitment to provide uninterrupted service.
8.13 You shall not breach any third party rights or laws of any jurisdictions within which You operate.
9 RETURNED GOODS & CANCELLED ORDERS
9.1 For Goods qualifying for warranty, Goods will only be accepted by OTX after a Returned Merchandise Authority (RMA) number has been issued to You. The RMA can only be issued to You following Your completion of the RMA online application form which may be issued to You from Our service department. Following Your receipt of the RMA number, You may be authorized to return the Goods to Us for repair or replacement.
9.2 Where the Goods are not being returned due to a fault in the Goods, OTX retains the sole right to accept or decline such a request for return, and OTX shall have the sole discretion to determine the value of the credit offered on these returned Goods. A minimum restocking fee of the greater of 10% of the sale price or Our standard rate as advertised on the Site shall apply (being not less than US$30.00), however, surcharges may apply, and each case will be considered individually and a rate set. You may elect not to return the Goods.
9.3 In any event, Goods returned under clause 9.2 will not be accepted for replacement where the Goods are not in original condition, original packaging has been opened, or if the Goods are being returned more than 30 days from the date of invoice.
9.4 You are responsible for all insurance and delivery costs, together with associated taxes/duties/tariffs incurred in returning Goods to OTX, and in subsequently receiving any repaired or replaced Goods.
10 LIMITATION OF LIABILITY
10.1 OTX's total liability to You shall be limited, at OTX's option, to repairing or replacing any defective Goods or refunding to You the purchase price of the Goods. The warranty offered to You at the time of You purchasing the Goods is not transferable to a third person or party.
10.2 OTX shall not be liable for Your consequential losses or damages, including loss of profit.
10.3 You agree to indemnify OTX against any and all losses, actions, claims, costs, damages, fines and expenses (including reasonable legal expenses) suffered or incurred by OTX arising out of, or in any way connected with, any material breach of this agreement by You and/or Your negligent acts or omissions and/or the negligent acts, omissions or breaches of Your employees, agents, contractors or suppliers.
11 FORCE MAJEURE
11.1 Notwithstanding any other provision of these Terms, but subject to the other provisions of this clause 11, if either of the Parties fail to observe or perform any of the covenants, conditions and agreements imposed upon the Parties under this Contract or any Order, and such failure shall have been occasioned by or in connection with or in consequence of Force Majeure, such failure shall be deemed not to be a breach of such covenants, conditions and agreements.
11.2 For the purposes of these Terms, "Force Majeure" means any act of God, confiscation or expropriation, embargo, blockade, insurrection, public mains electrical supply failure, fire, flood, storm, explosion, nuclear accident, sabotage, revolution, riot, act of war whether declared or not, warlike operations, acts of terrorism, earthquake, slide, epidemic, quarantine restriction, strike, network service failure, the imposition of any import ban, or any other similar cause beyond the reasonable control of OTX or You as the case may be, which prevents, hinders, or interferes with the performance by either Party of their obligations under these Terms.
11.3 Neither Party shall be entitled to the benefit of the provisions of this clause 11 under any or all of the following circumstances: (a) to the extent that the failure was caused by the contributory negligence of the Party claiming suspension; or (b) to the extent that the failure was caused by the Party claiming suspension and such Party has failed to remedy the event, and to resume the performance of such covenants or obligations, with reasonable dispatch; or (c) if the failure was caused by lack of funds; or (d) unless, as soon as possible after the happening of the event relied upon or as soon as possible after determining that the event was in the nature of Force Majeure and would affect the claiming Party's ability to observe or perform any of its covenants, conditions and agreements, the Party claiming suspension shall have given to the other Party notice to the effect that it was unable by reason of Force Majeure (the nature of which must be specified in the notice) to perform the particular covenants and obligations.
11.4 The Party claiming suspension shall likewise give notice as soon as possible after the Force Majeure shall have been remedied, to the effect that the Force Majeure has been remedied and that such Party has resumed, or is then in a position to resume, the performance of such covenants, conditions and agreements.
11.5 Notwithstanding anything to the contrary in this clause 11, the Parties agree that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the particular Party involved and such Party may make settlement of any such strikes, lockouts and other industrial disturbances at such time and on such terms and conditions as it may deem to be advisable. No delay in making such settlement shall deprive such Party of the benefit of this clause 11.
12.1 You agree to indemnify OTX and hold OTX harmless from all losses, costs, expenses and fees associated with any breach between OTX and You of a contract between the Parties, or of any breach between the You and other Members of a contract between those Parties.
12.2 Accuracy of information published on the Site by any Member is not guaranteed by OTX. OTX makes no endorsement or guarantees to the accuracy of any third party reviews published on the Site.
12.3 Links that exist to third party sites should not be taken as being an endorsement of such a site by OTX, and no liability will be accepted for any subsequent losses, however arising, and in whatever form in utilising these sites and their related services.
12.4 No claim may be made against OTX following the expiration of 12 months from the time of any event causing a claim to arise.
12.5 Without limiting clause 12.4, if a liability is incurred by OTX, any Agent, or any director (including through negligence), the total liability to OTX, any Agent or director of OTX is limited to a maximum amount of one hundred dollars (US$100.00).
13 INTELLECTUAL PROPERTY
13.1 All rights to the title and use of intellectual property owned by OTX shall remain the property of OTX and without limit shall relate to software, trademarks, brands, logos, designs, images, text, and website layout, content and functionality. OTX does not permit You or any other person to copy, adapt, modify, decompile, reverse assemble or otherwise exploit any intellectual property or proprietary technology. We will be the sole owner of all rights, title and interest in and to all content, information, data, compilations and processes resulting from our operation of the Site.
13.2 You agree to treat all information received from Us or otherwise obtained in relation to Our business in strict confidence and to take all steps practically possible to prevent any unauthorised use or disclosure of that information. You acknowledge that this obligation will continue to apply notwithstanding the termination of this agreement. Upon termination of this Agreement, for whatever reason, all plans, designs, artwork, drawings, images, software designs, software code, and Our company systems and materials, shall be returned to OTX, and upon termination, You are strictly forbidden to continue to use such information and data without written authorisation from OTX. The work You complete for OTX will remain the property in every respect of OTX and You hereby waive any entitlement to Your author’s rights for such work. This information, data and property will remain, at all times, the property of OTX.
13.3 You shall not use any copyright material unless You have received explicit permission from OTX in writing agreeing to the same.
13.4 You agree to not use any trademarks which are the property of OTX, nor to use any similar marks or words, or combination of words which may infringe upon OTX's intellectual property rights without the express written permission of OTX.
13.5 You agree to resell or dispatch all Goods supplied by OTX only under the trademark with which the Goods were supplied.
13.6 In the event that Your account with OTX is terminated, You must immediately cease to use any trademark or intellectual property owned by OTX or OTX's suppliers, either directly or indirectly in connection with Your business.
13.7 By publishing content on the Site, You agree that OTX may reproduce, copy or transmit, or distribute any such content, in order to promote the Site and OTX business.
13.8 OTX may edit the content of any information listed on the Site and intervene in specific Member communications and financial transactions should OTX deem necessary for whatever reason.
14.1 Each Party has rights and information which is confidential to, and the property of that Party, and information which is confidential to, and the property of third parties and used and disclosed by OTX as the case may be under license from such third party. Such information is referred to below as "Confidential Information".
14.2 For the purposes of this clause 14, the Party supplying Confidential Information is called the "Provider", and the Party receiving the Confidential Information is called the "Recipient".
14.3 All Confidential Information disclosed by the Provider to the Recipient shall be held in confidence and shall not be disclosed unless: (a) consent is received from the Provider; or (b) the Confidential Information is in the public domain otherwise than through the act or default of the Recipient, its employees, related companies and contract licensees or is within the knowledge of the Recipient otherwise than as a consequence of this contract or any Order; or (c) it is necessary for the Recipient to disclose the Confidential Information to discharge a liability whether actual or reasonably perceived under any statute for the purpose of discharging that statutory liability.
14.4 If You are a Member, You agree that Members acting as your nominated Account Managers may have access to Your Sales information, and Account Managers will hold such information in confidentiality as determined in this clause 14.
15.1 Without prejudice to any of Our other rights, including the right to enforce Our security interest in the Goods, this Agreement may be terminated without prejudice to the rights or remedies of either Party: at any time by either Party, by written notice, or by email, to the other Party if the other Party does not remedy any material breach of this agreement which is capable of being remedied within 7 days after the date on which the Party receives notice from the first Party requiring it to do so; or at any time by either Party, by written notice, or by email, to the other if the other materially breaches this agreement and that breach is incapable of remedy; or at any time by either Party, for whatever reason. On the termination of this agreement, at Our request You must promptly return to Us or destroy (at Our request) all confidential data, documents, records or papers in Your possession or under Your control which relate in any way to the Services or to Our business. OTX may terminate any contract and any order under these Terms, without notice to You, if: (a) You breach any of the terms, conditions or warranties contained in any contract or order under these Terms; (b) You become insolvent; (c) a receiver is appointed in respect of Your business or any of Your assets; (d) You make any assignment or arrangement for the benefit of Your creditors.
15.2 In the event of such termination by OTX, OTX may cease delivery of any Goods which have not then been delivered pursuant to any contract or Order under these Terms, and may repossess any Goods held by You as fiduciary for OTX.
15.3 OTX may close Your account for any other reason as determined solely by OTX.
15.4 These terms shall continue to have effect after and notwithstanding the termination of any contract under these Terms.
15.5 Termination of any contract under these Terms shall not release You from liability for any prior breach of such contract by You.
16.1 No waiver of any provision of these Terms, nor consent to any departure from it by either Party shall be effective unless it is given in writing and agreed to by OTX. Any such waiver or consent granted by OTX shall be effective in this specific instance and for the specific purpose for which it was given.
17 NOTICES AND DISPUTES
17.1 Any notice under this agreement is to be made in writing, signed by the sender and addressed to the other Party at the address of their last known place of business. A notice will be received: when it is actually delivered, if sent by hand; ten working days after it is posted, if sent by post; and one working day after a confirmed fax transmission report is received, or earlier if the other Party acknowledges it. Invoices are permitted to be sent by email.
17.2 Disputes shall be settled in accordance with Hong Kong law in good faith, and if no agreement is reached, the matter shall be referred to mediation. If the dispute is not resolved by discussion or mediation, then the dispute will be referred to and finally resolved by arbitration in Hong Kong, or as otherwise determined by OTX. Each Party shall bear their own costs in resolving disputes.
17.3 OTX has no legal responsibility to assist to settle disputes arising between Members. These Parties shall settle their own disputes directly.
17.4 OTX shall seek to assist to settle disputes arising between Members and AGT.
18 MISCELLANEOUS PROVISIONS
18.1 OTX publication on the Site of prices, fees and various operational requirements shall form part of these Terms. Each term of this contract is separately valid and binding. If for any reason, either Party cannot rely on any term, all other terms will remain valid and binding. This contract will be governed by and interpreted in accordance with Hong Kong law.
19 YOUR RESPONSIBILITIES
19.1 If you are registered as a Member on the Site, You agree to inform Us of any changes to the legal status of your business. You must maintain the legal and operational ability to manage transactions through the Site. You must execute sales orders at the price listed on the Site. You will be responsible to pay local taxes (if any) on Goods and services you sell on the Site. You agree to comply with our various Site usage conditions and guidelines and comply with all government statutory regulations.
19.2 You must not rate Your own Goods or Services or the Goods or Services of other Members on the Site with which you have a direct or indirect financial interest, or other material interest, nor may you provide false feedback through the Q&A functionality.
19.3 You must maintain accurate and up to date data posted on the Site at all times.
19.4 Goods and Services uploaded on the Site must have an associated image uploaded. The description of the Goods and Services must relate accurately to the Goods and Services offered for sale, and the image must be an accurate representation of the actual Goods and Services for sale.
19.5 Offers of Goods and Services shall use keywords that relate directly to the Goods and Services being offered for sale.
19.6 For the sake of clarification, You agree that transactions are between You and the purchasing Member, and You must maintain all legal responsibilities for such transactions with that purchasing Member.
19.7 OTX provides a platform to facilitate Your transactions with purchasing Members. System generated transaction documents will be produced by Our system, and You agree to utilise the system administration tools to accurately display the status to OTX and to purchasing Members of the status of transactions. You will be responsible for maintaining Your own accounting information, and related local taxation records. You will assume full responsibility in backing up Your own trading data.
19.8 Should we accept payment from purchasing Members for the sale of Your Goods, we ONLY accept such payment on Your behalf as a service to You, however, we assume no risk for chargebacks from credit card merchants, bad debts from Members, or dishonored payments (whether from fraudulent transactions, erroneous or duplicate transactions, or arising from any other causes). In the event of any of these events occurring, You agree that We will debit Your account without delay, and reverse any payment made to You, whether from funds held in Your account, or from funds received from future orders. OTX will have the right to offset these and other outstanding amounts (including any required purchasing Member refunds or OTX fees due from You) against amounts payable to You from OTX, or seek such reimbursement from You by any other lawful means.
19.9 You will be required to display on the Site Your Terms and Conditions for any offers. You will also be required to display Your policies regarding Privacy (for example, how You deal with the treatment of personal information), Delivery (for example, expected delivery timeframes, method of shipment, insurance responsibilities, the means for purchasing Members to track and trace shipments of Goods), Returns (for example, the basis of what constitutes the right to return Goods, the process to return Goods, associated timeframes, costs and each Parties’ responsibilities and specific details regarding warranties, guarantees, returns, refunds and exchanges), and Disputes (the process and mechanism of how You will remedy disputes).
19.10 You must attend to ‘order processing’ and all associated backend order updates on the Site in an efficient and reasonable timeframe, and provide timely and professional customer support. Failure to accurately utilise the order update function on the Site to reflect the actual status of an order will constitute a breach of contract, and can result in a suspension or closing of Your Account.
19.11 All fees for OTX services are to be paid in advance, apart from any commissions, which shall be paid upon the issuing of a suitable OTX invoice and on the terms shown on the invoice. OTX will have the right to offset these and other outstanding amounts against sales income collected on your behalf, or from any other amounts payable to You.
19.12 A direct debit authority, and/or an authority to direct debit your Account may be required as part of operating an account with OTX.
19.13 Any breach of this operational agreement may result in an Intervention Fee being applied to Your account (to be detailed on the Site if active).
19.14 You will comply with all relevant legislation relating to the promotion and selling of any Goods or Services as required by any legal statutes and regulations in force at the time.
PART B - AGENTS
20 NATURE OF THE AGREEMENT
20.1 We both confirm and agree that: in You providing the Services of AGT, You are, in all respects, an independent contractor and not our employee; this agreement does not create an employment, fiduciary, partnership or joint venture relationship between Us; and you will be solely liable for all of your debts, losses, expenses, accident insurance levies and taxation on Your income. You will maintain all legal responsibilities directly with Your dealings with other Members, and release Us (and our agents and employees) from all claims, demands, losses, costs and damages (including indirect and consequential) of every kind and nature arising out of, or in any way connected with any disputes whatsoever. You agree to be solely responsible for all costs in breaching all laws; and be responsible for any royalties and licensing fees payable to any licensor (if any); and agree to comply with all applicable laws, holding OTX harmless from costs associated from breaches of these laws (including indirect and consequential).
21 AGENT SERVICES
21.1 As an AGT, You will work with other members of the Site (both Sellers and COs). You will assist these Members in technical matters relating to the site, and in all promotional matters.
21.2 You agree to perform the Services to the best of your ability, using due diligence and care; and be solely responsible for all costs in breaching all laws; and be responsible for any royalties and licensing fees payable to any licensor (if any); and comply with all laws applicable to the provisions of the Services and hold OTX harmless from costs associated from breaches of these laws (including consequential losses). Subject to the satisfactory performance of the services, you will be entitled to payment of a fee as stipulated on the Site.
21.3 Payment will be made in USD to your authorised bank account only, and shall be made in accordance with our standard schedule of payments.
21.4 You must not compete with Us: For the Restraint Period of 12 months commencing on the termination of your agreement, You will not (without our prior written consent) whether on Your own account, or as a consultant or contractor to, or a partner, agent, employee, shareholder or director of, any other person, either directly or indirectly: accept instructions from any of Our clients comparable to the types of instruction that, at the date of termination of your employment it was within Our ordinary business to accept; nor obtain service from any of Our suppliers comparable to the types of service that, at the date of termination of your agency services was within Our ordinary business to obtain; nor provide services to any of Our customers comparable to the types of service that, at the date of termination of your agency agreement was within Our ordinary business to provide; nor employ or solicit the services of, or offer employment to, any person who is employed by Us or was employed by Us within the three months preceding the date of termination of your contract; nor endeavor to entice any of our customers away from Us.
21.5 Consideration already included: You acknowledge that Your remuneration includes consideration for entering into this restraint.
21.6 Restraint reasonable: You agree that you consider these restrictions to be reasonable in all the circumstances. However, if a court finds any of them to be unenforceable, the Parties agree to accept any modification of the Restraint Period or Restraint Area required to make the restriction enforceable.
21.7 Extension of restraint: This restraint also extends to all our related companies as well as to any entity to which our operations are transferred or sold.