Terms and Conditions

BenePanda Terms and Conditions

 

1.     APPLICATION

 

1.1   These Terms and Conditions applies to any person who browses, visits, access and/or uses the features provided by BenePanda, and any subdomain thereof (“Site”).

 

1.2   By accessing, using or continuing to access or use the Site, you signify that you have read, understood and agreed to be bound by these Terms and Conditions, regardless of whether you are a registered user of the Site.

 

2.     INTERPRETATION

 

2.1       In these Terms and Conditions, unless the context requires otherwise, the following words and expressions shall have the following meanings:

Advertisement

means the advertisement placed by the Advertiser on the Site;

 

Advertiser

means any person who advertises on the Site;

Business Day

means any day (other than a Saturday, Sunday and Public Holiday in Hong Kong) on which banks are open for general business in Hong Kong;

 

Confidential Information

means all information (not generally available to the public) in whatever form, including but not limited to visual, oral or electronic form, relating to BenePanda, the Site and/or the Users (as the case may be), which is obtained, provided or disclosed through BenePanda, these Terms and Conditions and/or the Site to the Users;

 

Content

means all content available on the Site, whether created by BenePanda and/or the User, including the Advertisement, organization, layouts, user interface, texts, documents, databases, graphics, designs, compilations, photographs, pictures, drawings, videos, sound recordings and other materials;

 

Intellectual Property

means patents, trademarks and service marks, rights in designs, trade or business names and copyrights (whether or not any of these is registered and including pending applications for registration of any such thing) and rights under licences and consents in relation to any such thing and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;

 

Member

 

means any person who is an employee of a corporate member of BenePanda and who has registered with BenePanda to become eligible to enjoy benefits under the BenePanda Staff Benefits Program and whose registration has been approved by BenePanda;

 

Merchant

 

means any person who has been approved by BenePanda as a merchant to publish its goods and/or services on the Site;

 

Parties

means BenePanda and the User(s), and “Party” means any one of them;

 

Product

means the goods and/or services to be provided by the Merchant or the Advertiser (as the case may be) to the User;

 

Site

means the web-based and app-based products directory and market place at www.benepanda.com.hk and any subdomain thereof (including the Merchant’s Site), and its related mobile applications (if any), related databases and supporting software operated by BenePanda to which the Users are entitled to gain access;

 

User

means any person who browses, visits, access and/or uses the Site, and includes the Member, the Advertiser and the Merchant (as the case may be), and “Users” means any two or more of them;

 

BenePanda

means Panda Benefits Company Limited and is the operator of the Site.

 

2.2       References to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions (whether before, on or after the date hereof) from time to time and shall include any provisions of which there are re-enactments (whether with or without modification).

 

2.3       References herein to Clauses and Schedules are to clauses in and schedules to these Terms and Conditions unless the context requires otherwise and the Schedules to these Terms and Conditions shall be deemed to form part of these Terms and Conditions.

 

2.4       The expressions "BenePanda" and "User" shall, where the context permits, include their respective successors, personal representatives and permitted assigns.

 

2.5       Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing a gender include every gender.

 

2.6       Where a word or phrase is given a defined meaning in these Terms and Conditions any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning.

 

2.7       Any reference to “these Terms and Conditions” is a reference to these BenePanda Terms and Conditions (including the schedules) and any written amendments, supplementals or novations of these Terms and Conditions from time to time, and includes a reference to any document which amends, waives, is supplemental to or novates the terms of these Terms and Conditions.

 

2.8       Any reference to “writing”, or cognate expressions, includes any communication effected via the Site, electronic mail, telex, cable, facsimile transmission or other comparable means but shall not include short messaging services, instant messaging services or internet chat.

 

2.9       Any reference to “person” includes any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity.

 

2.10    Any reference to a “day”, “week”, “month” or “year” is to that day, week, month or year in accordance with the Gregorian calendar.

 

2.11    If any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day which is not a Business Day, then that period is to be deemed to only expire on the next Business Day.

 

3.     SITE

 

3.1     The Site allows Members to shop online and enjoy certain discounts and staff benefits available under the BenePanda Staff Benefits Program on the Site.

 

3.2     The Merchants are allowed to list their Products with the relevant information on the Site for display to the Users.

 

3.3     The Members may browse the list of Products on the Site and make orders in respect of the Products via the Site.

 

3.4     Upon the Member’s order, the Member hereby acknowledges that the Merchants may contact the Member at any time during reasonable hours of the day at the contact details provided by the Member to BenePanda, and vice versa.

 

3.5     BenePanda shall have no obligations, responsibility or liability of whatsoever nature and is not privy in respect of the communication, dealing and transaction between any User and any Merchant.

 

3.6     BenePanda shall be entitled at its sole discretion, to cancel, withdraw, restrict, suspend, vary or modify the use, features and/or facilities of the Site (whether in whole or in part).

 

4.     REGISTRATION

 

4.1     Before the Members may access the Site and enjoy staff benefits and discounts on Products, the Members shall Register with BenePanda by providing the information and documents requested by BenePanda.  BenePanda reserves the right at its sole discretion, at any time, to prevent, stop, withdraw and/or reject the sign-up application of any Member without assigning any reason whatsoever.

4.2     BenePanda grants the Member a non-exclusive, non-transferable and revocable permission under these Terms and Conditions to use and access the Site for the purposes contemplated by these Terms and Conditions and for no other purposes.  BenePanda reserves the right at its sole discretion, at any time, to prevent, stop and/or disallow, by any means, any Member to continue using the Site without assigning any reason whatsoever, and/or to revoke the registration status and deactivate the account of the Member from the Site.

 

4.3     Each Member shall submit his own registration details to log into the Site, and the Member shall be responsible for safeguarding his own details, and other security processes and devices that may be provided by BenePanda.  Each Member hereby represents, covenants and undertakes to ensure that only the Member shall have access to the Site by using the details, and any login to the Site by using the details shall be deemed to have been made by the Member.

 

4.4     The Member shall not misuse his login details and the Site to the detriment of BenePanda and the Site and/or any other User.

 

4.5     Each Member undertakes, covenants and agrees to perform, execute and carry out the following:

 

(a)   to comply with these Terms and Conditions, and other rules, regulations and policies as may be formulated by BenePanda from time to time with respect to the Site;

 

(b)  to perform all acts necessary for the discharge of his obligations under these Terms and Conditions;

 

(c)   to keep the Confidential Information secret and confidential and shall not use, divulge or communicate to any person (save as may be required by law or any legal or regulatory authority) any Confidential Information, and shall use his reasonable endeavours to prevent the publication and/or disclosure of any Confidential Information, and shall only use the Confidential Information for the purposes of proposing, considering or making transactions through the Site, and this obligation shall subsist even after the User ceases to be a user of the Site;

 

(d)  so long as he is a User of the Site and for 36 months from the date he ceases to be a User:

 

(i)             the User shall not and shall procure that its affiliates shall not privately contact or communicate outside the Site, with any other User and/or any third party introduced via the Site, with respect to the activities on the Site with a view to arrange a transaction outside the Site;

 

(ii)           the User shall not directly or indirectly, engage, be employed or be interested in any business which is similar to or competing with the business of BenePanda, carry on for its own account either alone or in partnership or be concerned as a director in any company engaged or about to be engaged in any business which is similar to or competing with the business of the Company, and solicit any person, firm or company who is or has been a User of the Site; and

 

(iii)         the User shall not and shall procure that its affiliates shall not (whether alone or jointly with another and whether directly or indirectly), solicit or contact with a view to the engagement or employment by any person, any employee, officer or manager of BenePanda or any person who has been an employee, officer or manager of BenePanda within the previous 12-month period.

 

4.6     The User acknowledges the following:

 

(a)   that BenePanda and the Site does not give warranty, either express or implied, in relation to any activities and/or outcomes on the Site and that the User’s request can or will be fulfilled;

 

(b)  that BenePanda and the Site does not give warranty, either express or implied, as to the functionality, operability, accessibility, accuracy, correctness, reliability, up-to-dateness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights, of the Products and Advertisements (as the case may be);

 

(c)   that the Content and material available on the Site shall be for informational purposes only, and shall not be regarded as an offer, solicitation, invitation, advice and/or recommendation to buy, sell, subscribe for or dispose of any product;

 

(d)  that BenePanda does not and shall not assume any advisory, fiduciary or similar or other duties or act as an adviser to the User, and nothing on the Site shall constitute or shall be construed to constitute investment, legal, tax or other advice;

 

(e)   that the Contents, representations and/or warranty in respect of the Products and Advertisements (as the case may be) are made solely by the respective Merchants and Advertiser (as the case may be) and BenePanda holds no responsibility for any part thereof;

 

(f)   that the User places and has placed no reliance whatsoever on any representations, agreements, statements or undertakings, whether oral or in writing, made or alleged to have been made by BenePanda in relation to any Contents, activities and/or outcomes on the Site;

 

(g)  the User shall assume all responsibility for all communications, correspondences and transactions carried out by the User with any Merchant and/or the Advertiser via the Site and/or outside the Site;

 

(h)  the User shall be responsible for accepting and concluding their respective transaction with the Merchants and Advertisers (as the case may be), and BenePanda is not privy to any and all communications, correspondences, and transaction between any User and any Merchants and any Advertisers (as the case may be);

 

(i)    that BenePanda does not guarantee the success of any transaction on the Site;

 

(j)    that BenePanda provides the Site on as “as is” basis and makes no representation as to the quality, completeness, up-to-dateness or accuracy of any Content made available on the Site;

 

(k)  that BenePanda makes no representation of whatsoever nature as to the pricing of the Products;

 

(l)    that BenePanda does not warrant the use and access to the Site will be uninterrupted, error free or free of computer viruses or computer bugs or other harmful or corrupting code, or that defects will be corrected, or that the download, installation or use of any software or content of the Site in or with any computer will not affect the functionality or performance of the computer;

 

(m) the User shall be responsible for obtaining and using the necessary software and/or equipment to obtain access to the Site at the User’s own risk and expense, and shall be responsible for the performance and security (including without limitation taking all necessary measures to the extent reasonable possible to prevent unauthorized use or access) of any software and/or equipment used by the User;

 

(n)  the User shall assume the entire cost of all necessary servicing, repair or correction of any defect, problem or damage in his computer, and BenePanda shall not be liable for the loss of any of the content in the User’s computer and/or equipment, or for the deletion or failure to store any content maintained or posted by or through the Site;

 

(o)  that BenePanda does not warrant the Site will be protected against any malicious attack and that the data will not be compromised under such attack; and

 

(p)  that the registration of any Merchant on the Site is not a guarantee on the creditworthiness, genuineness and trustworthiness of the Merchant.

 

5.     ORDER AND DELIVERY

 

5.1     Except where otherwise specified, BenePanda is not the seller or supplier of the Product. We are responsible for managing and administering the site, and arranging order processing for the merchandise you ordered from the Merchant through our Site.

 

5.2     When you place an order you are making an offer to buy from the Merchant the Product you have specified at the price stated for those Products. You cannot cancel an order once it has been submitted, even if our acceptance or rejection of your order is still pending.

 

5.3     We will acknowledge your order to confirm that we have received your order by email. The confirmation will provide details of your order including the item, price, progress and delivery information.  This communication will be our acceptance of your order on behalf of the Merchant. You may track your order status online.

 

5.4     Our acceptance of your order will only cover the Products mentioned in the order confirmation and may not cover all the Products you ordered. If this is the case, then the order you made for the remaining Products will only be accepted when we send a further acceptance of that part of your order.

 

5.5     The availability of the Products is as shown online and will be updated regularly by the Merchant. They should not be relied on as definite statements as to whether the Products you wish to purchase are actually in stock.

 

5.6     We reserve our right not to accept or cancel an order for any reasons at our sole discretion, including without limitation:

 

(a)   no sufficient stock to deliver the merchandise you have ordered;

 

(b)  no delivery can be arranged for your area; or

 

(c)   one or more of the merchandise you ordered was listed at an incorrect price due to a human or computer error or an error in the pricing information provided by the supplier.

 

5.7     If we cancel your order we will notify you by email and will credit to your account any sum deducted by us from your credit card as soon as possible but in any event within thirty (30) days of your order. You accept that we will not be obliged to offer any compensation for disappointment suffered.

 

5.8     Delivery of the Products shall be made to the address you specify in your order by the Merchant.

 

5.9     Merchant will make every reasonable effort to deliver the Product to you within the delivery timeframe stated on the relevant page on which the Product is listed, but you acknowledge that while stock information on the Platform is updated regularly, it is possible that in some instances a Product may become unavailable between updates. All delivery timeframes given are estimates only and delays can occur. If the delivery of your Product is delayed Merchant will inform you accordingly via e-mail and your Product will be dispatched as soon as it becomes available to Merchant. The time for delivery shall not be of the essence, and Merchant (nor any of its agents) shall not be liable for any delay in delivery howsoever caused.

 

5.10  In the event you do not receive the Product by the projected delivery date and provided that you inform BenePanda within 3 days immediately from such projected delivery date, Merchant will try, to the best of Merchant’s ability, to locate and deliver the Product. If BenePanda does not hear from you within 3 days from such projected delivery date, you shall be deemed to have received the Product.

 

5.11  If the Member fails to take delivery of the Products (otherwise than by reason of any cause beyond the Member’s reasonable control or by reason of Merchant’s fault) then without prejudice to any other right or remedy available to Merchant, Merchant may terminate the customer contract between the Merchant and the Member in respect of the order.

 

6.    RETURNS OR EXCHANGES AND CANCELLATION

6.1  Please read the returns or exchanges policy as specified by the supplier carefully before you place an order. Unless otherwise specified by the respective supplier, no return or exchange of merchandise will be accepted unless the merchandise you ordered are faulty, defective or damaged (with no fault on your part), or the merchandise are not what you ordered, or the delivery is of an incorrect quantity, provided that:

 

(a)   the returns or exchanges policy applies;

 

(b)  the merchandise are unused and in the condition originally sold together with all parts and accessories which are provided with the merchandise including manuals, certificates, labels, tags, consumables, bags, and boxes;

 

(c)   the packaging of the merchandise must be in the condition in which it was delivered to you; and

 

(d)   request for return or exchange is sent to our customer service representative via email and the merchandise is returned to the supplier through free pick up from us at the delivery address within a limited period specified by the supplier.

 

6.2 CLASS / SERVICE CANCELLATION POLICY

     Unless specified by supplier, class and service cancellation are not available.

 

6.3 You agree and accept that merchandise accepted for returns are eligible for refund in the form of PandaCoins carrying with an expiry date for your next purchase. If any promotional discount was applied to the total purchase amount at time of purchase, you will be refunded PandaCoins in the amount paid at the time of purchase for that item. If you have used PandaCoins on the purchase, the accumulated PandaCoins will be deducted from your user account. You agree and accept that all PandaCoins will be cancelled when your user account is terminated.

 

6.4     You agree and accept that merchandise is acceptable for exchange subject to stocks availability.

 

6.5     You agree and accept that it will be at the supplier’s sole discretion whether the merchandise is accepted for return or exchange. Under no circumstances will we accept the return of any merchandise directly to us or be held liable for your damages for whatever reasons.

 

7.     PAYMENT & REFUND

 

7.1     You may pay for the Product using any of the payment methods prescribed by mobile and web payment systems from time to time. When you place an Order, actual payment will be only charged upon Merchant’s acceptance of your Delivery Order generated on the platform.

 

7.2     All payments shall be made to BenePanda, either accepting payment in its own right or as the Merchant’s agent. You acknowledge that BenePanda is entitled to collect payments from you on behalf of Merchants.  The payment methods may be subject to additional terms as prescribed by BenePanda from time to time.

 

7.3     You may not claim against BenePanda or any of its agents, for any failure, disruption or error in connection with your chosen payment method. BenePanda reserves the right at any time to modify or discontinue, temporarily or permanently, any payment method without notice to you or giving any reason.

 

7.4     If the Member fails to make any payment pursuant to the terms and conditions of the payment method elected or payment is cancelled for any reason whatsoever, then without prejudice to any other right or remedy available to BenePanda and/or the Merchant, BenePanda and/or the Merchant shall be entitled to cancel the order or suspend delivery of the Products until payment is made in full.

 

7.5     In respect of any refunds:

 

(a)  All refunds shall be made via the original payment mechanism and to the person who made the original payment, except for Cash on Delivery and if payments are not remitted to the Merchants, where refunds will be made via bank transfer into the individual’s bank account provided that complete and accurate bank account details are provided to us.

 

(b)  We offer no guarantee of any nature for the timeliness of the refunds reaching your account. The processing of payment may take time and it is subject to the respective banks and/or payment provider internal processing timeline.

 

(c)  All costs associated with the refund process imposed by the processing bank and/or payment provider shall be borne by you.

 

(d)  All refunds is conditional upon our acceptance of a valid return of the Product.

 

(e)  We reserve the right to modify the mechanism of processing refunds at any time without notice.

 

8.     RIGHTS AND POWERS OF BENEPANDA

 

8.1     The User hereby irrevocably authorizes BenePanda to do the following:

 

(a)  to conduct credit checks on the User;

 

(b)  to obtain and verify any information about the User as BenePanda may in its sole and absolute discretion deem fit, including for the purpose of complying with any anti-money laundering laws, and the User shall immediately provide such information when requested by BenePanda, and the User authorizes all sources to which BenePanda may apply to obtain any information which BenePanda may require; and

 

(c)  disclose any information and/or data relating to the User and its account to any government or regulatory agency or authority, any credit bureau, any other third parties, service providers, agents or business partners, and any other person to whom disclosure is permitted and/or required by the law.

 

8.2     BenePanda shall have the right but not the obligation to appoint third parties to carry out the responsibilities and obligations, and/or to exercise the rights, of BenePanda under these Terms and Conditions.

8.3     BenePanda reserves the right at its sole discretion to remove any Contents from the Site without assigning any reason thereof.

 

8.4     BenePanda reserves the right at its sole discretion to immediately suspend and/or terminate the use of the Site by any User without assigning any reason thereof, without warning and/or notice, and the User shall have no claims or actions of whatsoever nature against BenePanda or its affiliates with respect to such suspension and/or termination.

 

8.5     BenePanda shall not be liable for acting in good faith upon any instructions and/or postings from the User. Such instructions and/or postings shall be deemed irrevocable and binding upon the User upon BenePanda’s receipt notwithstanding any error, fraud, forgery, lack of clarity or misunderstanding in respect of such instructions and/or postings.

 

9.     REPRESENTATIONS AND WARRANTIES

 

9.1     The User hereby represents and warrants as follows:

 

(a)  the User is an individual of full age and sound mind (if applicable) and has voluntarily agreed to be bound by these Terms and Conditions;

 

(b)  the User is an entity validly incorporated according to the law of its place of incorporation (if applicable) and has voluntarily agreed to be bound by these Terms and Conditions;

(c)  any Contents, information and documents provided by the User on the Site and/or to BenePanda are true, accurate, current, complete and not misleading;

 

(d)  there is no action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official (whether pending or threatened) that is likely to affect the legality, validity or enforceability of these Terms and Conditions, or affect the User’s ability to perform his obligations hereunder;

 

(e)  the User shall be personally responsible for the use and access of the Site using the User’s account;

 

(f)   the User shall use and access the Site at his own risk;

 

(g)  the User shall use and access the Site in accordance with these Terms and Conditions and in accordance with any law for the time being in force in Hong Kong and shall not use and/or access the Site for any unlawful purpose;

 

(h)  the User shall not without the prior written approval of BenePanda, list, offer and/or advertise on the Site any items for sale, lease, rent and/or exchange;

 

(i)   the User shall be personally responsible for the Contents published on the Site using his account, and shall ensure that the Contents published on the Site by the User:

 

(j)   is true, accurate and not misleading;

 

(k)  shall not infringe the Intellectual Property rights of any person, and shall not infringe the privacy of any person;

 

(l)   shall not cause any damage to any person, and shall not contain any defamatory remarks;

 

(m)shall not violate any law, rules, regulations, by-laws, guidelines, order of any authority;

 

(n)  shall not contain any pornographic or obscene materials;

 

(o)  shall not contain any computer viruses and/or computer programming routines that may damage, interfere with, intercept and/or expropriate any system or data;

 

(p)  the User shall not adapt, modify, copy, translate, distribute, transmit, display, perform, reproduce, publish, license, transfer, download, post, create derivative works from, framing and using, any Contents belonging to BenePanda or published by other Users on the Site;

 

(q)  the User shall not transfer and/or sell any information, software, user list, database, texts, graphics, logos, photos, audio files, visual files and other information, data and document provided through or obtained from the Site to any person;

 

(r)   the User shall not decompile, reverse engineer or otherwise attempt to discover the source code of the Site, and/or any Contents available on the Site;

 

(s)   the User shall not, without written authorization from BenePanda, access, hack into, interfere with, disrupt, disable, over-burden or otherwise impair the proper functioning of the Site, including but not limited to the following means: denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, reverse engineering or reprogramming; and

 

(t)   the User shall not initiate any transaction or transact, transmit or receive payment transfers via the Site for or in connection with any criminal or illegal purpose or any purpose that may contravene any anti-money laundering laws.

 

9.2     In addition to Clause 6.1, the Merchant and the Advertiser (as the case may be) hereby represents and warrants to BenePanda and the other Users in respect of the Products and Advertisements (as the case may be), as follows:

 

(a)  the Merchant is the legal and beneficial owner of the products and there are no claims of whatsoever nature existing in respect of the Products;

 

(b)  the Products are free from any Encumbrances from time to time;

 

(c)  pictures uploaded on the Site representing the Products that the Merchant intends to sell and are current, not misleading, misrepresentative and deceptive;

 

(d)  pictures uploaded on the Site do not contain nudity or any obscene or vulgar content;

 

(e)  the description and content of the Products uploaded on the Site are current, accurate, truthful, not misleading and does not contain any material omission and deception;

 

(f)   the content uploaded on the Site do not contain or transmit any code of a destructive nature that may damage, interfere with, intercept or expropriate any system, data or personal data;

 

(g)  the Products strictly conform to the descriptions, specifications, drawings, samples, performance criteria and other descriptions provided on the Site;

 

(h)  the Products are new (unless stated otherwise), of merchantable quality and fit for the purposes intended, free from defects, safe and durable;

 

(i)   the Products conform with all applicable laws, rules, regulations, by-laws and/or guidelines for the time being in force; and

 

(j)   the Products are free from defects in materials, performance, operation and workmanship.

 

9.3     BenePanda shall have no obligation to verify and the User shall be solely responsible for the accuracy, up-to-dateness, completeness and legality of all Contents provided by the User on the Site.

 

9.4     The User hereby assign absolutely to BenePanda all title, benefits and interest relating to copyright on the Contents published on the Site by the User, including but not limited to texts, graphics, drawings, layouts and photographs.

 

10.  USER GENERATED CONTENT

 

10.1       When you submit any user generated content including all text, files, images, photos, sounds, videos or other materials to our Site (“User Content”), you grant to us, a perpetual, irrevocable, non-exclusive, worldwide, transferable, sub-licensable fully paid-up and royalty-free licence to reproduce, distribute, communicate to the public, publicly perform, modify, prepare derivative works of, display and otherwise use the User Content in connection with the Site, including without limitation for the purposes of promoting and redistributing part or all of the Site in any media formats and through any media channel. Without limitation, the rights that you grant to us under this clause include a right to grant each user of the Site a sub-licence to use the User Content to the extent permitted by the functionality of the Site from time to time. You hereby waive, and procure that all other authors of the User Content waive, all moral rights in the User Content (including rights to be identified as the author of the User Content or to object to any derogatory treatment of the User Content), whether such rights subsist now or at any time in the future in any place in the world.

 

10.2       You represent, warrant and covenant that:

 

(a)  you have the legal right and authority to grant the licence in clause 7.1 above;

 

(b)  you are the owner of the User Content and/or have all of the necessary rights, consents, permissions and licences which are required for you to grant us the licence in clause 7.1 above;

 

(c)  by exercising the licence in clause 7.1 above, we shall not infringe the intellectual property rights or other rights of any third party;

 

(d)  to the extent that the User Content identifies any individual (whether by name, picture or otherwise), you have obtained all consents and permissions from those individuals which are required for us to use the User Content as contemplated by the licence in clause 7.1 above;

 

(e)  the User Content does not include any material that may be illegal, defamatory, obscene, offensive, harmful to the safety of any person, aimed at harassing any person or otherwise is inappropriate for display on our site; and

 

(f)   at our request, you will provide us with written copies of any consents, permissions and licences that you are required to obtain.

 

11.  COOKIES

 

11.1    The Site uses cookies. The User shall have cookies enabled on his computer in order for all functionality on the Site to function accordingly.

 

12.  LINKS TO THIRD PARTY PLATFORMS

 

12.1    The Site may contain links and/or references to other platforms, and vice versa. BenePanda shall not be responsible for the Contents available on the third party platforms.

 

13.  FORCE MAJEURE

 

13.1    BenePanda shall not be liable to the other party and shall not be deemed to be in breach of these Terms and Conditions by reason of any delay in performing or failure to perform any of its obligations under these Terms and Conditions if the delay or failure was caused by an event of force majeure.

 

13.2    Without prejudice to the generality of the foregoing provision, force majeure shall include but not limited to the following:

 

(a)  act of God, including but not limited to fires, explosions, earthquakes, drought, tidal waves and floods, or accident;

 

(b)  war, threat of war, act of terrorism or threat of terrorism, sabotage, insurrection, civil disturbance or requisition;

 

(c)  restrictions imposed by any law, regulations, by-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority;

 

(d)  interruption of traffic, strikes, lock-outs, or other industrial actions or trade disputes (whether involving the employees of BenePanda or third party);

 

(e)  breakdown of internet services for any reason whatsoever, save for the willful misconduct of BenePanda;

 

(f)   other unforeseeable circumstances beyond the control of the Party against which it would have been unreasonable for the affected Party to take precautions and which the affected Party cannot avoid even by using its best efforts.

 

13.3    BenePanda shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to an event of force majeure.

 

13.4    Upon the occurrence of an event of force majeure, BenePanda may at its options do any of the following:

 

(a)  fully or partially suspend performance of its obligations under these Terms and Conditions when such event of force majeure continues; or

 

(b)  terminate these Terms and Conditions with immediate effect by written notice to the User and BenePanda shall not be liable for any loss, damage, penalty, demand, claim, fines, costs and expenses suffered or incurred by the User as a result thereof.

 

14.  PERSONAL DATA PROTECTION

 

14.1    The User hereby agrees that BenePanda may collect, store, process, disclose, access, review and/or use personal data about the User, whether obtained from the User or from other sources, in accordance with applicable laws and regulations, and the Personal Data Protection Policy of BenePanda made available on the Site (“PDP Policy”).

 

14.2    The Merchant and the Advertiser (as the case may be) hereby agree to comply with the PDP Policy when collecting, storing, processing, disclosing, accessing, reviewing and/or using the data of any User obtained through these Terms and Conditions and/or the Site.

 

14.3    The Merchant and the Advertiser (as the case may be) shall immediately notify BenePanda in writing in the event it has knowledge of or suspects any breach, potential breach or threatened breach of personal data of any User by any person, and shall upon request, provide such assistance to BenePanda to address and solve the breach of personal data.

 

15.  INDEMNITY

 

15.1    The User shall, at all times, defend, indemnify and keep indemnified BenePanda in full for all losses, costs, expenses, claims, demands, awards, fines, penalties, liabilities of whatsoever nature (whether present, future, contingent or otherwise and including legal fees on a full indemnity basis) and howsoever arising, which may be sustained, suffered or incurred by BenePanda as a result of the following:

 

(a)  any act or omission of the User, including the use of the Site;

 

(b)  any breach, potential breach or threatened breach of the User’s obligations under these Terms and Conditions, or any statutory requirement, duty or law; and/or

 

(c)  the User’s fraud, misconduct or misuse of any technology or any Intellectual Property rights under these Terms and Conditions.

15.2    The User agrees and undertakes to pay on demand, any amounts owed pursuant to this Clause.

 

16.  DISCLAIMER AND LIMITATION OF LIABILITY

 

16.1    We do not represent or warrant that access to our site (including using our applications or software), or any part of it, will be uninterrupted, reliable or fault-free.

 

16.2    We do not represent or warrant to you that our site or any of its contents will be accurate, complete or reliable.

 

16.3    We do not represent or warrant that:

 

(a)  any services (whether or not provided by us) will be provided with due care and skill; or

 

(b)  any merchandise (whether or not provided by us) will be of merchantable quality or will be fit for any purpose (even if that purpose has been previously notified to us).

 

16.4    We do not warrant and cannot ensure the security of any information which you transmit to us. Any information which you transmit to us is transmitted at your own risk.

 

16.5    To the extent permitted by law, we exclude all liability (whether arising in contract, tort or otherwise and whether or not due to our negligence) which we may otherwise have to you as a result of:

 

(a)  any technical, factual, textual or typographical inaccuracies, errors or omissions on or relating to our site (including using our applications or software) or any information on our site;

 

(b)  the unavailability of our site (or any part of it), merchandise or services;

 

(c)  any delay in providing, or failure to provide or make available, merchandise or services, or any negligent provision of merchandise or services;

 

(d)  any merchandise not being of merchantable quality or fit for their intended purpose; or

 

(e)  any misrepresentation on or relating to our site, the merchandise or the services.

 

16.6    Save as required by law:

 

(a)  in no event shall BenePanda, its officers and employees be liable to the User for any loss of business, profits, revenue or goodwill, and any indirect, consequential, special, exemplary or punitive losses or damages, whether arising from negligence, breach of contract or otherwise, and

(b)  we will have no liability to pay any money to you by way of compensation except otherwise specified in these terms and conditions.

 

16.7    You must observe and comply with all applicable regulations and legislation, including obtaining all necessary customs, import or other permits to purchase merchandise from our site. We make no representation and accept no liability in respect of the export or import of the merchandise you purchase.

 

16.8    You agree that each of these limitations is reasonable having regard to the nature of our Site and in particular given that when you purchase Products through our Site you will enter into a separate contract with the Merchant in each case.

 

16.9    None of the above exclusions shall affect any statutory rights which are not capable of being excluded. However, in such case our obligation, where permitted by law, will be limited to the resupply of our services or the merchandise to you.

 

16.10 Each of the above exclusions or limitations shall be construed as a separate, and severable, provision of these terms and conditions.

 

16.11 The User agrees that BenePanda shall not be liable for any loss, liability, damages, costs or expenses of any kind incurred by the User in connection with any unauthorized use of the Site, any use, delay or inability to use the Site, and/or the inability to obtain access to or to transact over the Site.

 

16.12 BenePanda shall in no manner be responsible for the conduct of any User and shall not be liable for any action or proceedings taken by any User against any other party, and vice versa.

 

17.  RELATIONSHIP OF PARTIES

 

17.1    Nothing herein shall be construed to create a partnership, joint venture, agency or employment relationship between the Parties. No Party has authority to enter into agreements of any kind on behalf of the other Party.

 

18.  REMEDIES

 

18.1    No remedy conferred by any of the provisions of these Terms and Conditions is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by any of the Parties shall not constitute a waiver by such Party of the right to pursue any other available remedies.

 

18.2    No failure on the part of any Party to exercise and no delay on the part of any Party in exercising any right under these Terms and Conditions will operate as a release or waiver thereof, nor will any single or partial exercise of any right under these Terms and Conditions preclude any other or further exercise of it.

 

 

19.  VARIATIONS

 

19.1    BenePanda reserves the right to amend, vary and/or supplement these Terms and Conditions from time to time. Any amendments, variations and/or supplements to these Terms and Conditions shall be effective when posted on the Site.

 

19.2    The User’s continued use of the Site on or after the date on which any amendments, variations and/or supplements come into effect shall be construed as the User’s agreement to be bound by the amended Terms and Conditions.

 

20.  NOTICES

 

20.1    The communications between BenePanda and the User shall be made through the Site.

 

20.2    In certain circumstances where BenePanda considers that a termination event may have occurred, BenePanda may give any notice required under these Terms and Conditions in writing and arrange for it to be mailed or personally delivered or faxed or emailed to the recipient at the current address held in BenePanda’s record.

 

20.3    All notices and communications are effective upon delivery.

 

21.  BINDING EFFECT

 

21.1    These Terms and Conditions shall be binding upon the respective successors-in-title and permitted assigns of the Parties. The User shall not assign or transfer its rights, title, interests and benefits under these Terms and Conditions or any of its liabilities and obligations hereunder without the prior written consent of BenePanda.

 

22.  INVALIDITY AND SEVERABILITY

 

22.1    If any provision of these Terms and Conditions or part thereof is or may become under any written law, or is found by any court or administrative body or competent jurisdiction to be illegal, void, invalid, prohibited or unenforceable then:

 

(a)  such provision or part thereof shall be read down or severed only to the extent of such illegality, voidness, invalidity, prohibition or unenforceability;

 

(b)  the illegality, voidness, invalidity, prohibition or unenforceability of any provision or part thereof in any jurisdiction shall not affect the legality, validity or enforceability of any other provision or of that provision in any other jurisdiction, and the remaining provisions of these Terms and Conditions shall remain in full force and effect; and

 

(c)  the Parties shall use their respective best endeavours to negotiate and agree on a substitute provision which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking.

 

 

23.  ENTIRE AGREEMENT

 

23.1    The Parties hereby agree that the provisions contained in these Terms and Conditions shall constitute the entire agreement between the Parties in respect of the subject matter of these Terms and Conditions and supersede all previous memoranda, expectations, understandings, communications, representations and agreements whether oral or written between them in respect of the subject matter hereof.

 

24.  GOVERNING LAW AND ARBITRATION

 

24.1    These Terms and Conditions shall be governed by and construed in accordance with the laws of Hong Kong.

 

24.2    In the event any dispute or difference shall arise amongst BenePanda and the User as to the construction of these Terms and Conditions or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, including any question regarding its existence, validity or termination, such dispute or difference shall be submitted to the courts of Hong Kong.