1. Definitions and Interpretation
- In this document, unless the context clearly indicates otherwise:
- Agreement means this document and any schedules or annexures to it.
- Approval means any approval, authorisation, code of conduct, government policy, consent, exemption, filing, licence, notarisation, permit, registration, waiver and conditions attaching to any of them (as applicable) by any Authority, and includes any renewal of, or variation to, any of them.
- Authority means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
- Book Service means the services set out in the Automate Book Service set out in Schedule 4, as amended from time to time when Automate posts an amendment on the Website or App.
- Business Day means any day other than a Saturday, Sunday or bank holiday and a reference to a date which does not fall on a Business Day is to be construed as a reference to the immediately preceding Business Day.
- Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or Liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.
- Consumer means a person who uses the Website or Automate App.
- Booking Services means a Consumer enters into an agreement with the Auto Shop, via the Website or App, for the Auto Shop to provide Auto Shop Services to the Consumer.
- Consequential Loss means any indirect loss (including, without limitation, loss of production, loss of profit, loss of revenue, loss of contract, loss of goodwill, liability under other agreements or liability to third parties).
- Confidential Information includes any of the following:
- (a) information or material which is inherently confidential or commercial in confidence;
- (b) any information in any form including in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located, including all databases, source codes, methodologies, manuals, artwork, drawings, designs, plans, advertising manuals and all financial, Auto Shop Accounting, marketing, customer and supplier lists, know-how, trade secrets, proprietary information, technology, operating procedures and other information and combinations of the foregoing, used by or relating to a person and its transactions, business or affairs;
- (c) all notes and reports incorporating or derived from information referred to in paragraphs (a) or (b).
- Document includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
- Fair Use Policy means Automate's fair use policy exhibited in Schedule 2 as amended from time to time when Automate posts an amendment on the Website or App.
- Automate means Auto Repair and Service Group Limited (BR no.: 67742582)
- Automate Confidential Information means confidential information of or used by Automate and includes:
- (a) Automate materials;
- (b) Automate Policies and Automate Schedules;
- (c) any parts and functionality of the Website or App not available to the general public, including screenshots, screen layout, source and object code pertaining to those parts.
- Automate Commission is defined in Schedule 3.
- Automate Commission and Payment Schedule means the current Automate Commission and Payment Schedule set out in Schedule 3, as amended from time to time when Automate posts an amendment on the Website or App.
- Automate Group is defined in clause 12.5.
- Automate Material means all Documents, information and materials of Automate relating to the Booking Services and the Website, whether created before or during the operation of this Agreement, including:
- (a) all material in which Automate has or acquires Intellectual Property rights of any nature;
- (b) the Website and App and all their forms and code; and
- (c) any Documents, information and materials generated by or as a result of use of the Website, App or Booking Services.
- Automate Policies means the policies of Automate from time to time posted on the Website or App. Copies of current Automate Policies are set out in Schedule 2.
- Automate Schedules means the Automate Booking Services Schedule and the Automate Charges and Payment Schedule.
- Automate Charges and Payment Schedule means the Automate Charges and Payment Schedule set out in Schedule 3, as amended from time to time when Automate posts an amendment on the Website and App.
- Automate Booking Services Schedule means the current Automate Booking Services Schedule set out in Schedule 4, as amended from time to time when Automate posts an amendment on the Website and App.
- Government Agency means a government or government department, a governmental, semi-governmental or judicial person or a person (whether autonomous or not) charged with administration of any applicable law.
- Intellectual Property means any type of intellectual property anywhere in the world including:
- (a) any patents, utility models, copyrights, trademarks or service marks, trade names, brand names, indications of source or appellations of origin, eligible layout rights, designs, drawings, specifications or technology or designations;
- (b) any invention, discovery, trade secret, know-how, computer software or confidential, scientific, technical or product information and any developments or improvements to equipment, products, technology, processes, methods or techniques;
- (c) any other rights which result from intellectual activity in any field whether industrial, commercial or agricultural and whether dealing with manufactured or natural products;
- (d) any pending application or right to apply for registration, letters patent, deed of grant, certificate or document of title for anything which is referred to in paragraphs (a) to (c) of this definition and any medium in which anything which is referred to in those paragraphs is stored or embodied; and
- (e) the Website, including screenshots, "look and feel", source and object code.
- Interest means interest at the annual rate of 2% above the annual base lending rate from time to time charged by Automate's bankers during a given period, conclusively determined with reference to a certificate provided by any representative of Automate bankers purporting to set out the relevant interest rate.
- Liability includes all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses of whatever description.
- Service means providing motor vehicle service and maintenance services including the repair, maintenance of parts and components and other servicing.
- Personal Information has the meaning given in the Personal Data (Privacy) Ordinance and statutory instruments thereunder and includes information or an opinion (including information or an opinion forming part of a database) that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
- Privacy Ordinance means:
- (a) the Personal Data (Privacy) Ordinance; and
- (b) any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information;
- Term is defined in clause 2.1.
- Warranty Service means any service (including provision of goods, parts, components and consumables such as oil) relating to a warranty provided by a motor vehicle manufacturer, motor vehicle seller, Auto Shop or other person in relation to a vehicle.
- Website means the web site (including all sources and object codes) operated by Automate for aspects of provision of Booking Services, currently located at Automate-app.com
- Website Software means any computer program in machine readable format that runs on the Website.
- Auto Shop means a person for whom Automate has created a Auto Shop Account.
- Auto Shop Account means an account and profile for a Auto Shop created by Automate as contemplated in clause 2.1(a) that identifies a person as a provider of Auto Shop Services and authorised to use the Website and App subject to the terms and conditions of this Agreement.
- Auto Shop Group is defined in clause 12.5.
- Price means the price for Auto Shop Services for a Consumer quoted by Auto Shop.
- Auto Shop Information means all information and material in any form (whether via the Website or App) provided to Automate by or on behalf of the Auto Shop, including:
- (a) material furnished to Automate pursuant to clause 11;
- (b) information about the Auto Shop required by Automate from time to time, including its corporate entity, copy/the number of Business Registration, trading name and particulars of its proprietors or shareholders;
- (c) the Auto Shop's hourly labour rates and mark-ups on parts and components;
- (d) the Auto Shop's environmental fees and costs;
- (e) the Auto Shop's fees and charges for Services, for example changing windscreen wiper blades and providing roadworthiness certificates;
- (f) any areas in which the Auto Shop provides specialised services;
- (g) the Auto Shop's facilities, location and business hours; and
- (h) the terms and conditions of warranties provided by the Auto Shop for goods and services provided to its Consumer.
- Auto Shop Qualifying Criteria means the criteria as exhibited in Schedule 1 set by Automate in its sole discretion from time to time for creation and continuation of Auto Shop Accounts.
- Auto Shop Representative is defined in clause 6(a).
- Auto Shop Services are set out in the Auto Shop Services Schedule.
- Auto Shop Sub-Account means a Auto Shop Account that Automate links to other mechanics of the Auto Shop.
In this Agreement, unless the subject or context otherwise requires:
- (a) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
- (b) the singular includes the plural and vice versa;
- (c) a reference to an individual or person includes a corporation, firm partnership, joint venture, association, authority, trust, state or government and vice versa;
- (d) a reference to any gender includes all genders;
- (e) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this Agreement;
- (f) a recital, schedule, annexure or a description of the parties forms part of this Agreement;
- (g) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
- (h) a reference to any party to this document or any other document or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns;
- (i) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- (j) a reference to a matter being written includes that matter being in any mode of representing or reproducing words, figures or symbols in written form;
- (k) a reference to a time is that time in Hong Kong;
- (l) except as otherwise provided, a reference to a period of time (including without limitation, a year or a month) is to calendar period;
- (m) a reference to the Companies Ordinance is to the Companies Ordinance Cap. 622
- (n) a reference to an "associate" of a party is to a person that has a relationship for the time being with the relevant party whereby either that party or such person directly or indirectly controls, is controlled by, or is under common control with, the other. For this purpose, "control" means the power, whether direct or indirect, of one person to direct or cause the direction of the management or policies of another, whether by contract, through voting securities or otherwise;
- (o) a reference to "dollars" or "$" is to Hong Kong currency;
2. Creation of Agreement
This Agreement comes into existence (Commencement Date) between Automate and a person when the person:
- (a) has submitted to Automate the information on the Website or App required by Automate to open a Auto Shop Account (including a suitable unique username and password); and
- (b) is notified by Automate that Automate has created a Auto Shop Account for the person, and continues until terminated in accordance with its terms (Term).
2.2 Scope of Agreement
By entering into this Agreement, the Auto Shop agrees that this Agreement including Automate Policies and Automate Schedules will apply whenever it uses the Website. Some services Automate may provide may have additional or other terms that the Auto Shop will have to accept when it uses those services.
2.3 Auto Shop Sub-Accounts
Automate may permit Auto Shop Sub-Accounts for a Auto Shop or as Automate deems appropriate.
3. Auto Shop Assessment
- Whether Automate agrees to provide a Auto Shop Account to a person is entirely within the discretion of Automate. Without limiting the foregoing, a person requesting Automate to create a Auto Shop Account for the person, must:
- (a) use the Website or App to provide Automate all information necessary for Automate to decide whether to open a Auto Shop Account for the person; and
- (b) satisfy the Auto Shop Qualifying Criteria when the person applies for the Auto Shop Account and continue to satisfy those criteria.
4. Automate Services
4.1 Booking Services
- (a) In consideration of the Automate Commission, Automate will provide the Booking Services to the Auto Shop subject to the terms and conditions of this Agreement.
- (b) Automate does not guarantee that a Auto Shop will receive any Consumer Bookings as a result of provision of the Booking Services by Automate.
4.2 Auto Shop Account
The Auto Shop Account will have the functionality provided by Automate from time to time, and will, subject to availability of the Website or App, permit the Auto Shop to update, alter or delete its Auto Shop Information (except to the extent that Automate needs to retain that information for its own purposes).
Automate will not incur any Liability for any delay in the provision of the Booking Services.
6. Auto Shop Representative
- (a) During the Term of this Agreement, the Auto Shop must appoint a natural person (Auto Shop Representative) who will have the responsibility and commensurate authority from the Auto Shop to operate the Auto Shop Account and to whom all questions regarding this Agreement can be referred by Automate and who has the authority to represent and bind the Auto Shop under this Agreement.
- (b) At the discretion of Automate, a Auto Shop may have more than one Auto Shop Representative.
7. Charges and Payment
7.1 Charges for Automate Services
- In consideration of the Booking Services, the Auto Shop must pay Automate the sums determined as follows:
- (a) the Automate Commission, determined in accordance with the Automate Commission and Payment Schedule in force from time to time; and
- (b) charges for any other services provided by Automate to the Auto Shop, as agreed by the Auto Shop and Automate from time to time via the Website or otherwise.
7.2 Payment of Automate Commissions
- The Auto Shop must pay:
- (a) the Automate Commission, on the due date; and
- (b) Automate charges for other services at intervals agreed or otherwise, within 14 days of receipt of an invoice from Automate,
- free of deduction, set-off or counterclaim, via the payment options set out in the Automate Commission and Payment Schedule in force at the time of payment.
7.3 Increases in Automate charges
- Automate may review and increase or restructure the Automate Commission from time to time and the Automate Commission, as amended, will become binding in accordance with clause 23.
- Automate will give the Auto Shop invoices for amounts payable to Automate by the Auto Shop under this Agreement within 72 hours of completion of the Auto Shop Services.
- No amount paid by the Auto Shop to Automate is refundable in any circumstances.
7.6 Failure to Pay
- Without prejudice to any other right or remedy that Automate may have, if the Auto Shop fails to pay Automate any amount on the due date, Automate may:
- (a) charge interest, accruing on a daily basis and being compounded monthly from the due date until payment is made, whether before or after any judgment (and without prejudice to any statutory right of Automate to charge interest) and the Auto Shop will pay the interest immediately on demand; and
- (b) suspend the Auto Shop's access to its Auto Shop Account and the Website (without any Liability to Automate) until payment has been made in full or close the relevant Auto Shop Account and any related Auto Shop Sub-Accounts.
7.7 Time for Payment
Time for payment will be of the essence of the Agreement. All sums payable to Automate that will be due on a future Due Date under this Agreement will become due immediately on termination of the Agreement for any reason, despite anything to the contrary.
- (a) Automate and the Auto Shop agree that this Agreement is an agreement between the parties pursuant to which Automate may issue invoice in respect of all Auto Shop Services and other subject matter of this Agreement.
- (b) Automate will, as soon as practicable after approval and authentication of any relevant document provided by the Auto Shop in relation to the relevant Auto Shop Services, generate an invoice.
7.9 Loyalty Programs and Discount vouchers (Promo code)
Where Automate offers discount vouchers or other loyalty incentives to Consumers pursuant to which Automate has undertaken to pay the Auto Shop any sum for Auto Shop Services pursuant to such discount vouchers or loyalty incentive, the Auto Shop agrees that it will look only to Automate for such payment and not to Consumers in respect of the relevant Auto Shop Services.
7.10 Automate Quoting Services
Automate provides a platform allowing the Auto Shop to quote and estimate jobs submitted by Consumer through the Automate website or App (Automate Quoting Service).
8. Auto Shop General Obligations
(i) The Auto Shop shall:
- (a) provide the subject Auto Shop Services of a Consumer Booking on the date agreed between the Auto Shop and the Consumer in reasonable standard and level of workmanship;
- (b) co-operate with Automate in all matters relating to the Booking Services;
- (c) provide to Automate, in a timely manner, such Auto Shop Information and all other information as Automate may require to provide the Booking Services and ensure that it is accurate in all material respects;
- (d) ensure that all Auto Shop Information and all other information given to Automate is true and correct and up to date in all respects and to update the Auto Shop Information to ensure it remains accurate and up to date;
- (e) obtain and maintain all necessary licences, consents and Approvals to enable Automate to provide the Booking Services and for the Auto Shop to provide Auto Shop Services;
- (f) ensure that it complies with all laws, rules and standards necessary to maintain its capacity to provide general Car Services, Warranty Services and advise Automate immediately if its capacity to do so ceases for any reason;
- (g) keep its information stored on public databases, including Government Agencies, correct and up-to-date;
- (h) ensure that Automate is made aware as soon as is reasonably practicable, of any changes to facts comprised in the Auto Shop Information;
Failure to comply with any of the aforementioned obligations by the Auto Shop might incur liability on the corresponding Auto Shop.
(ii) The Auto Shop shall not:
- (a) circumvent or manipulate Automate's commission structure, billing process or commission owed to Automate; or
- (b) infringe any laws or third party rights or Automate Policies.
9. Fair Use of the Website and App
The Auto Shop shall comply with Automate's Fair Use Policy.
- (a) Links to other websites may be provided by agreement between Automate and third parties as a courtesy to the Auto Shop. Automate has no control over the content on these third party websites. Automate makes no express or implied warranties, concerning the content of these other websites, including the accuracy, completeness, reliability or suitability of any website for any particular purpose. Automate does not warrant that any such website or content is free from any claims of infringement of Intellectual Property rights or other infringement of the rights of third parties or that such website or content is free of viruses or other contamination.
- (b) By providing links to other sites or allowing other persons to display their logos or otherwise advertise their products or services on the Website, Automate does not endorse those sites, products, services or entities and assumes no responsibility for their access or use.
- (c) The Auto Shop (on its behalf and as agent for the Auto Shop Group) waives all Claims against and agrees to discharge and release Automate Group from all Claims or Liability arising from any use by the Auto Shop of websites connected to the Website by hyperlink or otherwise.
11. Auto Shop Information, Name and Style
11.1 Auto Shop Information
The Auto Shop must provide the Auto Shop Information requested by Automate from time to time, including:
- (a) the Auto Shop’s corporate entity, Business Registration, trading name and particulars of its proprietors or shareholders;
- (b) the Auto Shop's hourly labour rates and mark-ups on parts and components;
- (c) the Auto Shop's environmental fees and costs;
- (d) the Auto Shop's fees and charges for Services, for example changing windscreen wiper blades and providing roadworthiness certificates;
- (e) any areas in which the Auto Shop provides specialised services;
- (f) the Auto Shop's facilities, location and business hours;
- (g) the terms and conditions of warranties provided by the Auto Shop for goods and services provided to its Consumer; and
- (h) any other information reasonably required by Automate from time to time.
11.2 Name, style and trade or certification marks
The Auto Shop must procure that Automate is authorised, whether by licence or otherwise, to display on the Website and App:
- (a) photograph(s) of the Auto Shop's business premises where Auto Shop Services are provided;
- (b) the name, trade mark and trading style of the Auto Shop; and
- (c) any trade mark, collective mark, certification mark or trading name or style associated with or with which the Auto Shop is associated or is authorised to use.
12. Consumer Reviews and Ratings
12.1 Reviews, ratings and comments
The Auto Shop agrees that Automate may permit Consumers to post:
- (a) reviews (based on review criteria selected by Automate in its sole discretion from time to time, some of which may not be disclosed or published by Automate);
- (b) ratings by Consumers (based on ratings criteria selected by Automate in its sole discretion from time to time, some of which may not be disclosed or published by Automate); and
- (c) comments by Consumers,
about the Auto Shop on the Website and App and Automate may (but does not currently) in its sole discretion, permit the Auto Shop to post comments in response to Consumer reviews, ratings and comments which Automate may remove at any time.
The Auto Shop agrees that Automate may publish on the Website and App, relative rankings of Auto Shops including the Auto Shop from time to time, based on Automate's review and assessment of Consumer comments, reviews and ratings contemplated in clause 12.1 at Automate’s sole discretion.
12.3 Automate Review of content
Automate may from time to time monitor or review content of the Website and App and reserves the right to edit, refuse to post or to remove any information or materials (in whole or in part) that in Automate's sole discretion is objectionable or in violation of any applicable law or this Agreement. However, Automate has no obligation to monitor any content or to edit, delete or refuse to post such content and Automate is not responsible for any content provided by Consumers or Auto Shops. The Auto Shop expressly acknowledges and agrees that any communication it makes using the Website is a public and not private communication.
12.4 Use of material
Without limiting clause 19, the Auto Shop will not promote or reproduce any material on the Website and App.
12.5 Release and indemnity
The Auto Shop itself and as agent for its shareholders (if a company) or its proprietors and owners (if not a company) and its managers or directors (as appropriate), employees, officers and agents (for whom it acts herein as agent) (collectively, Auto Shop Group):
- (a) will indemnify and hold harmless Automate and its directors, officers, employees and agents (for whom Automate acts herein as trustee and agent) (collectively, Automate Group); and
- (b) waives, releases and discharges Automate Group,
from and against any Claims or Liability the Auto Shop Group may suffer or incur as a result of any publication on the Website of reviews, ratings, comments or rankings published on the Website or any Claims or Liability as a result of and arising from complaints, loss and damage suffered by Consumers and/or Automate Group as a result of the Auto Shop Services.
13. Auto Shop to comply with obligations owing to Consumers
Despite anything in this Agreement:
- (a) The Auto Shop is solely responsible, under its own arrangements with Consumers, to ensure that it complies at all times with its obligations owing to Consumers and to the requisite standard and level of services and workmanship and within reasonable time as stipulated; and
- (b) Automate has no responsibility nor liability to ensure that the Auto Shop complies with its obligations owing to Consumers or to assist the Auto Shop to do so.
14. Auto Shop Warranties
The Auto Shop warrants and represents to Automate as at the date of this Agreement and every time the Auto Shop receives Booking Services:
- (a) that the Auto Shop is a commercial provider of Services;
- (b) that the Auto Shop holds all necessary licenses, consents and Approvals to lawfully operate its business and supply Services;
- (c) that the Auto Shop Information will be true, accurate and correct in all respects at all times;
- (d) the Auto Shop will perform its obligations to Consumers in accordance with Consumer Bookings;
- (e) the Auto Shop will provide Services in strict accordance with applicable standards imposed by motor vehicle manufacturers;
- (f) the Auto Shop will provide Warranty Services in strict accordance with the terms of the relevant warranty; and
- (g) the Auto Shop is a supplier in good faith of Auto Shop Services and has entered into the Agreement in good faith and not for any other purpose.
In addition to any other indemnity given by the Auto Shop, the Auto Shop will indemnify and hold Automate Group harmless against and from any and all Claims or Liabilities relating directly or indirectly to:
- (a) use by the Auto Shop of the Website and App;
- (b) use of the Auto Shop of the Booking Services;
- (c) any unavailability of the Website or the telecommunications facility it employs in provision of the Booking Services;
- (d) any difference between the Auto Shop Indicated Price and the amount the Auto Shop actually charged the relevant Consumer for the Auto Shop Services;
- (e) the value or utility to the Auto Shop of the Booking Services;
- (f) the content or accuracy of or failure to update Auto Shop Information;
- (g) to the maximum extent permissible by law, any breach of security of Automate's databases or the Website;
- (h) any unlawful gathering, disclosure or misuse of Personal Information by the Auto Shop;
- (i) the use of, and the accuracy and completeness of any information about the Auto Shop so provided by the Auto Shop itself;
- (j) any Claims by Consumers against the Auto Shop or against Automate relating to the Auto Shop or Auto Shop Services; and
- (k) any Claims by Consumers against Automate Group based on any act or omission of the Auto Shop or of the Auto Shop's its directors, employees, agents and contractors.
16. Limitation of Liability
16.1 Scope of Automate’s Financial Liability
This clause 16 sets out the entire financial liability of Automate owing to the Auto Shop in respect of:
- (a) any breach of the Agreement;
- (b) any use made by the Auto Shop of the Booking Services or any part of them;
- (c) any reliance by the Auto Shop on the Website or App or the Booking Services; and
- (d) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement and its subject matter.
16.2 Statute and Common Law
Automate does not give and will not be bound by any warranties, representations or conditions not expressly set out in this Agreement and Automate will not, to maximum extent permitted by law, be bound by any other terms implied by statute or common law in relation to this Agreement and its subject matter.
16.3 No Liability
To the maximum extent permitted by law, Automate will not be liable for any Consequential Loss or Liability, loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses of any nature and howsoever arising.
16.4 Limitation of Liability
To the extent that Automate Group's Liability is not otherwise excluded, Automate Group's total Liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of any agreement with the Auto Shop, use of the Website or App or any Booking Services, will be limited to $500, but to the extent such limitation is excluded by law, Automate Liability is limited to:
- (a) the supply of the Booking Services to which the Liability relates, again; or
- (b) the payment of the cost of having the Booking Services to which the Liability relates, supplied again.
17. Auto Shop Privacy Obligations
17.1 Use of Consumer information by the Auto Shop
The Auto Shop agrees that:
- (a) pursuant to provision of the Booking Services, Automate will disclose Personal Information and other information provided by Consumers, to the Auto Shop in the event of Consumer Bookings via the Website and the App;
- (b) it will only use information provided by Consumers strictly for the purpose for which the information was provided and no other purpose;
- (c) it undertakes in favour of Automate, the same obligations regarding the use, storage, protection and disclosure of information pertaining to Consumers including Personal Information, that Automate assumes in relation to Consumers; and
- (d) Automate will cooperate with any law enforcement authority in any jurisdiction in respect of any lawful direction or request to disclose the identity of a person or other information of any Consumers or Auto Shops in respect of violation of any applicable law.
17.2 Use by Automate of Auto Shop Information
- (a) The Auto Shop agrees that:
- (i) Auto Shop Information may be provided by Automate to Automate's data storage providers outside of Hong Kong;
- (ii) Automate will use and analyse Auto Shop Information for the purposes contemplated by this Agreement and Automate's business;
- (iii) Automate will disclose Auto Shop Information to persons to whom such disclosure is required by law or is necessary in Automate's opinion for provision of the Booking Services, and
the Auto Shop irrevocably directs and authorises Automate to make such disclosures and to use Auto Shop Information as contemplated in this Agreement; and
- (b) Automate will store Auto Shop Information and may alter, update, or delete such information as it sees fit from time to time.
18. Automate Privacy Obligations
- (a) For the purposes of operating the Website and App and in respect of the Auto Shop Information, Automate distinguishes between:
- (i) Personal Information, which includes individuals' names, contact details, mobile phone numbers, bank accounts and credit or debit card details and other identifying personal information which the Auto Shop may provide pursuant to using the Booking Services; and
- (ii) non-Personal Information, which includes Auto Shop Information and information about Services and other non-identifying personal information which the Auto Shop may provide pursuant to using Booking Services and Personal Information that has been amended so that it no longer comprises Personal Information.
- (b) Automate cannot guarantee that the information contemplated in clause (a) (Auto Shop Information) will be free from unauthorised access, disclosure or corruption.
19. Intellectual Property Rights
19.1 Rights in the Automate Information
- (a) All Automate Material is and remains the exclusive property of Automate or its licensors.
- (b) The Auto Shop acknowledges that it does not own or have any interest in any Intellectual Property rights in Automate Materials.
19.2 Auto Shop Information
The Auto Shop hereby grants to Automate a non-exclusive, transferable, royalty free, perpetual, irrevocable, worldwide licence (including the right to sub-licence) to use, reproduce, modify, adapt and further develop, for the exclusive benefit of Automate, all Intellectual Property rights in the Auto Shop Information to the extent Automate in its sole discretion deems necessary or desirable to enable Automate to exercise any rights and perform any obligations under this Agreement and enjoy the full benefit of this Agreement.
19.3 IP Warranties by Auto Shop
The Auto Shop represents and warrants to Automate that:
- (a) the Auto Shop is the legal and beneficial owner of, or is entitled to use (or will on creation own or be entitled to use); and
- (b) is entitled to licence to Automate in accordance with clause 19.2,
the Intellectual Property rights in the Auto Shop Information.
20. Grant of User Licence
Automate grants the Auto Shop non-exclusive, personal, non-transferable right (Auto Shop User Licence), without the right to sub-licence, to use the Website or App via internet access in the course of its business, in Hong Kong during the Term, subject to the terms and conditions of this Agreement.
20.2 Term of the Auto Shop User Licence
- (a) The Auto Shop User Licence will terminate automatically at the end of the Term.
- (b) The Website and App are proprietary to Automate and the Auto Shop acquires no rights or interests in or to the Website or App or their content other than those expressly granted by this Agreement.
20.3 Auto Shop responsibilities
Auto Shop will prevent and avoid any violation of Automate's proprietary rights in the Website, App or Website Software and will promptly report to Automate any such violation that comes to its attention. In particular, Auto Shop will implement suitable disciplinary procedures for employees who make (or attempt to make) unauthorised use or copies of the Website or part thereof or who use or distribute its Auto Shop Account details other than as expressly permitted by this Agreement.
20.4 No reverse engineering, decompilation or adaptations
The Auto Shop must not and must ensure that no other person:
- (a) disassembles, decompiles, reverse translates, in any other manner decodes or copies, adapts or reverse engineers the whole or any part of the Website Software and if any of these acts are carried out, all rights in any resultant source code will belong exclusively to Automate;
- (b) makes or authorises the making of, any other copies of the Website or Website Software and if any such copies are made, they will belong exclusively to Automate;
- (c) other than a Auto Shop Representative in the course of his or her employment by the Auto Shop in its business, obtains access to its Auto Shop Account including through any network of computers.
20.5 Termination of Licence
The Auto Shop User Licence terminates immediately upon termination of this Agreement for any reason.
21. Threshold Warranties
21.1 Threshold Warranties
Each party represents to the other and warrants that:
- (a) it is duly incorporated in accordance with the laws of its jurisdiction, validly exists under those laws and has capacity to sue or be sued in its own name and to own its property and conduct its business as it is being conducted;
- (b) it has capacity unconditionally to sign and deliver and comply with its obligations under this document;
- (c) it has taken all necessary action to authorise the unconditional signing and delivery of and compliance with its obligations under this document;
- (d) this document is enforceable against it in accordance with its terms and is not void or voidable;
- (e) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending, or to the knowledge of any of its officers, threatened which, if adversely decided, could have a material adverse effect on it;
- (f) it is not insolvent;
- (g) any information that it has given to another party in connection with this document is true and accurate in all material respects and not misleading in any material respect (including by omission) as at the date of this document or, if given later, when given; and
- (h) it is not entering into this document as a trustee.
22. Termination of Agreement
Without prejudice to any other rights or remedies which Automate may have, Automate may at its sole direction suspend the Auto Shop's Auto Shop Account or terminate the Agreement without owing any Liability to the Auto Shop immediately, if:
- (a) the Auto Shop fails to pay any amount due under the Agreement on the due date for payment;
- (b) the Auto Shop commits a material breach of any of the terms of the Agreement and if such a breach is remediable, fails to remedy that breach within 7 days of that party being notified in writing of the breach;
- (c) the Auto Shop has never or has ceased or in the opinion of Automate is likely to cease satisfying the Auto Shop Qualifying Criteria;
- (d) any Auto Shop Information is false or inaccurate;
- (e) the Auto Shop repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
- (f) Automate determined that the acts or omissions of the Auto Shop have or are likely to bring the Website or Automate into disrepute; or
- (g) Automate decides in its sole discretion to terminate this Agreement.
22.2 Auto Shop
The Auto Shop may terminate this Agreement on 30 days' prior written notice to Automate.
22.3 Effect of termination
On termination of the Agreement for any reason:
- (a) the Auto Shop will immediately pay to Automate all of Automate's outstanding unpaid invoices and interest and, in respect of Booking Services supplied but for which no invoice has been submitted, Automate may submit an invoice, which will be payable immediately on receipt; and
- (b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, will not be affected.
22.4 Surviving Conditions
The following clauses survive termination of the Agreement (however arising): clauses 1, 5, 7, 8, 13, 14, 15, 16, 17, 19, 20, 22 and any other term by its nature intended to survive termination of the Agreement survives termination of the Agreement.
Automate may, from time to time vary the Automate Policies and Automate Schedules and the terms and conditions of this Agreement and those variations will take effect subsequent to 7 days of Automate posting them on the Website or App.
23.2 Valid Variation
Subject to clause 23.1, no variation of the Agreement will be valid unless it is in writing and signed by or on behalf of each of the parties herein mentioned.
No failure, delay, relaxation or indulgence on the part of a party in exercising any right, power, privilege or remedy in connection with this document, operates as a waiver of that right, power, privilege or remedy nor does any single or partial exercise of any right, power, privilege or remedy preclude any other or further exercise of that or any other right, power, privilege or remedy. A waiver is not valid or binding on the party granting that waiver unless in writing and duly signed on behalf of that party.
Automate may, without prejudice to any other rights it may have, set off any Liability of the Auto Shop against any Liability of Automate to the Auto Shop.
- (a) If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement will not be affected.
- (b) If a provision of the Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision will apply with the minimum modification necessary to make it legal, valid and enforceable.
24.4 Entire Agreement
- (a) The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
- (b) Each party acknowledges that aside from the statements, representations, assurances or warranties set out in this document, in entering into the Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently).
- (a) The Auto Shop will not, without the prior written consent of Automate, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Agreement.
- (b) Automate may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.
Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
24.7 No Partnership or Agency except where expressly provided
- (a) Subject to paragraph (b) of this clause, nothing in the Agreement is intended to, or will be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party will have authority to act as agent for, or to bind, the other party in any way.
- (b) In any circumstance where Automate accepts payment directly from a Consumer, in connection with the sale of a Voucher or as a prepayment in respect of a Consumer Booking (“the prepayment”), the parties agree:
- (i) Automate is acting as an agent of the Auto Shop;
- (ii) Automate is acting within the scope of its authority when selling the Vouchers or accepting the prepayments;
- (iii) in the case of services described in any Voucher, or Consumer Booking, Automate is not the provider of those services and has no responsibility for the provision of those services;
- (iv) the Auto Shop must provide the products or services described in the Vouchers, or Consumer Booking, to the Consumer;
- (v) In the case of products described in any Voucher, or Consumer Booking, in addition to any other indemnity given by the Auto Shop, the Auto Shop will indemnify and hold Automate Group harmless against and from any and all Claims or Liabilities against Automate arising directly or indirectly from the provision of products to a Consumer pursuant to a Voucher sold by Automate or Consumer Booking.
24.8 Rights of Third Parties
A person who is not a party to the Agreement will not have any rights under or in connection with it, except that Automate accepts as agent and trustee any provision in the Agreement limiting the Liability of or granting an indemnity to the directors, employees, officers, Auto Shops or agents of Automate.
Any notice given under this document:
- (a) must be in writing, addressed to the intended recipient at the last known address, or if the intended recipient has previously given the sender notice of a change of address for the purpose of notices then the notice must be addressed to the intended recipient at the address last duly notified by the intended recipient to the sender;
- (b) must be signed by a person duly authorised by the sender (or in the case of a body corporate, by any of its directors or solicitors); and
- (c) is taken to be received:
- (i) in the case of a delivery in person, when delivered;
- (ii) in the case of a posted letter, on the third Business Day after posting (if posted to an address in the inside Hong Kong) or seventh Business Day (if posted to an address outside Hong Kong); and
24.10 Governing Law
This document is governed by and is to be interpreted according to the laws in force in Hong Kong. The parties submit to the non-exclusive jurisdiction of the courts operating in Hong Kong.
24.11 Further Steps
Each party agrees to do all things and sign all agreements, instruments, transfers and other documents necessary or desirable to give full effect to the provisions of this document and any transactions contemplated by it.
Each party must pay its own costs of entering into the Agreement.
24.13 No merger
The rights and obligations of the parties under the Agreement do not merge on completion of any transaction contemplated by the Agreement.
24.14 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to the Agreement and any transactions contemplated by it.
A term or part of a term of the Agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of the Agreement continue to be in force.
Schedule 1 Auto Shop Qualifying Criteria
A Auto Shop must:
- (a) be a qualified commercial supplier of Car Services in Hong Kong;
- (b) hold all necessary Approvals, licenses and consents necessary to lawfully operate its business and supply Logbook Services and Non-Logbook Services;
- (c) provide binding warranties to Consumers (consistent with the Auto Shop Information) for the work carried out as part of providing Services.
Schedule 2 Auto Shops Policies
Auto Shop Consumer Conduct Policy
- (a) The Auto Shop will not at any time:
- (i) fail to deliver the Auto Shop Services once the Auto Shop has agreed to provide them in accordance with this Auto Shop Consumer Conduct Policy;
- (ii) directly or indirectly charge a Consumer more than the Auto Shop Indicated Price for Auto Shop Services;
- (iii) harvest, use or collect information about Consumers, including but not limited to email addresses, without their consent, except as required by law.
- (b) The Auto Shop will provide the Auto Shop Services in accordance with the law and all applicable Approvals and standards.
- (c) When a Consumer Booking occurs with the Auto Shop through the Website or App:
- (i) Automate will contact the Auto Shop by Email or through App or other means of communication to confirm the booking or to arrange an alternative mutually agreed time for the booking;
- (ii) Automate will contact the Consumer SMS and/or Email or other means of communication to confirm the booking or to arrange an alternative mutually agreed time for the booking;
- (iii) Once an agreed day and time is confirmed the Auto Shop will receive an email (referred to as the Auto Shop Booking Confirmation) and a notification on App. The Consumer will also receive an email and a notification on App from Automate (referred to as the Consumer Booking Confirmation).
Auto Shop Account Security Policy
- (a) The Auto Shop will keep its Auto Shop Account including is username and password secret and confidential and will only disclose it to the Auto Shop Representative.
- (b) The Auto Shop will not transfer its Auto Shop Account and Auto Shop Account information to another party.
- (c) The Auto Shop will notify Automate immediately if it becomes aware that any person has received or gained access to its Auto Shop Account.
Auto Shop Insurance Policy
According to section 40 of The Employees' Compensation Ordinance, Cap. 282, the Auto Shop must not employ any employee in any employment unless there is in force a policy of insurance to cover their liabilities both under the Ordinance and at common law for injuries at work in respect of all their employees, irrespective of the length of employment contract or working hours, full-time or part-time employment, must maintain compulsory insurance.
If there is any dispute about the meaning of the above, Automate's insurance brokers may be requested by Automate to provide an opinion on the matter and the Auto Shop is then bound by that opinion, which is given by Automate's insurance broker as an expert and not an arbitrator and without Liability to the Auto Shop.
Auto Shop Fair Use Policy
The Auto Shop will not itself or permit any other person to:
- (a) distribute or post spam, unsolicited or bulk electronic communications, chain letters or pyramid schemes on or via the Website or App;
- (b) distribute viruses or any other technologies that may harm Automate or the interests or property of Consumers;
- (c) take any action that imposes or may impose in Automate's sole discretion an unreasonable or disproportionately large load on Automate's infrastructure;
- (d) interfere or attempt to interfere with the proper working of the Website, or Booking Services, or any activities conducted on or with the Website or Booking Services;
- (e) bypass Automate's robot exclusion headers or other measures it may use to prevent or restrict access to the Website or any part thereof;
- (f) use the Website or App to engage in any other forms of internet abuse, including tampering, hacking, spoofing, using robots or scripts, copying, distributing, modifying or otherwise interfering with the administration, security or proper function of the Website or any part of it;
- (g) copy, reproduce, modify, create derivative works from, distribute or publicly display any content from the Website or App;
- (h) use, post or transmit any unlawful, threatening, abusive, defamatory, obscene, vulgar, pornographic, profane or indecent information or material of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law including any information or material which Automate considers does, or is likely to, damage Automate;
- (i) distribute any Personal Information on or via the Website or App;
- (j) use, post or transmit any material of any kind which violates or infringes upon the rights of any other person, including material which is an invasion of any privacy or publicity rights or which is protected by copyright, trademark or any other proprietary right, or derivative works, without first obtaining permission from the owner or relevant rights holder;
- (k) use, post or transmit any material of any kind which contains or elicits a computer or software virus or other harmful component;
- (l) impersonate any person or entity, including posing as or using the Website posting as a Consumer; or
- (m) in any way exploit any material of any kind for commercial purposes, or which contains any promotional material or advertising.
Schedule 3 Automate Charges and Payment Schedule
The Automate Commissions are calculated as follows:
- (a) The Auto Shop must pay Automate a commission (Automate Commission) of 5% of the quoted aggregate Auto Shop Indicated Price in relation to a Consumer Booking, or a negotiated fee for Vouchers, as the case may be.
- (b) The Auto Shop must not disclose Automate Commissions to Consumers or itemise them in any invoices or receipts given to Consumers.
- (c) Payment terms (where the Consumer has paid the Auto Shop)
- Automate will invoice the Auto Shop for the Automate Commission within 72 hours of the Consumer Booking date being confirmed pursuant to the Auto Shop Consumer Conduct Policy. The Auto Shop must pay the invoice within 30 days of receipt thereof, free of deductions or set-off.
- (d) Payment terms (where the Consumer has paid Automate)
- Where the Consumer has made payment to Automate, acting as agent for the Auto Shop, for any Voucher or Consumer Booking then Automate shall pay the Auto Shop within 45 days after the products and services have been satisfactorily performed or delivered (as the case may be) subject to the following conditions:
- (i) the sum paid shall be the net amount after deduction of the Automate Commission and also after deducting any amount then owing by the Auto Shop to Automate; and
- (ii) payments shall be made to the Auto Shop on Tuesday of each week in respect of products and services performed or delivered (as the case may be) to Consumers during the prior week ending on the preceding Friday.
- (e) Cancelation of work by the Auto Shop
- In any case where a Consumer has made a prepayment to Automate and the Auto Shop cancels the scheduled provision of products or services booked by a Consumer (or as the case may be, cancels the scheduled provision of products or services described in a Voucher acquired by the Consumer) and Automate makes a refund to the Consumer (whether legally obliged to do so, or not) the Auto Shop must pay a cancelation fee to Automate in the amount equivalent to the Automate Commission that would have applied had the products or services been delivered as scheduled. The Auto Shop must pay the cancelation fee within 30 days of receipt of an invoice from Automate, free of deductions or set-off.
- (f) Books and records
- The Auto Shop must keep and retain all records relating to the provision of any Auto Shop Services by it, in accordance with the Companies Ordinance Cap. 622.
- (g) Audit
- Automate may, on 24 hours' notice, audit the books and records of the Auto Shop for the purpose of determining compliance by the Auto Shop with the terms of this Agreement and if such audit reveals any underpayment by the Auto Shop to Automate, the Auto Shop must pay the costs of the audit without limiting Automate's other rights and remedies.
Schedule 4 Automate Booking Services Schedule
The Booking Services include one or more of the following from time to time:
- (a) Permitting the Auto Shop to enter information on the Website or App to enable Automate, at its discretion, to create a Auto Shop Account for the Auto Shop that enables the Auto Shop to enter information via the Website or App that Automate can attribute uniquely to the Auto Shop;
- (b) Permitting the Auto Shop to enter information on the Website or App that enables Automate, via the Website or App, to display a profile about and information concerning the Auto Shop, as Automate sees fit from time to time;
- (c) Permitting the Auto Shop to enter information on the Website or App about the Auto Shop's prices for goods and services relating to Auto Shop Services; and
- (d) Causing the Website or App, to display the Auto Shop's Indicated Price for Auto Shop Services in response to information submitted via the Website or App by Consumers, provided the algorithm employed by Automate on the Website or App from time to time causes the Auto Shop's Indicated Price to be displayed in response to the relevant Consumer query, which is not guaranteed or warranted,
Subject to the Website or App being in operation at the relevant time.