Wiresk Terms and Conditions

Wiresk ACCOUNT, wiresk plan & WIRESK Services

Upon creation of its Wiresk Account, Client shall benefit from Wiresk Services in accordance with the Wiresk Plan it choose, solely for its personal use (if Client is an individual) or its internal business operations (if Client is a company).

When Client is a company and purchased a Wiresk Plan with multiple Users, Client undertakes that:

the maximum number of Users that it authorises to access and use Wiresk Services shall not exceed the number of Users as set out in the Wiresk Plan it has purchased from time to time.
it will not allow or suffer any User to be used by more than one individual User, unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use Wiresk Services.
each User shall create and keep a secure password for its Wiresk Accounts in relation to the use of Wiresk Services, and that each User shall keep its password confidential.
it shall maintain a written up-to-date list of its current Users.

During the use of Wiresk Services, Client shall not access, store, distribute or transmit any Viruses or any material that:

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive.
facilitates illegal activity.
depicts sexually explicit images.
promotes unlawful violence.
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property.

and Supplier reserves the right, without liability or prejudice to its other rights to Client, to disable Client’s access to any material that breaches the provisions of this clause.

Client shall not:

except as may be allowed by any applicable law which is incapable of exclusion by this Agreement, and except to the extent expressly permitted under this Agreement, (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Wiresk Services in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Wiresk Services; or
access all or any part of Wiresk Services in order to build a product or service which competes with Wiresk Services; or
use Wiresk Services to provide services to third parties; or
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make Wiresk Services available to any third party except the Users, or
attempt to obtain, or assist third parties in obtaining, access to Wiresk Services, other than as provided under this Agreement.

Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, Wiresk Services and, in the event of any such unauthorised access or use, promptly notify Supplier.

Client may change its Wiresk Plan through its Wiresk Account at any time during the Term. Supplier shall (i) immediately provide benefits to the corresponding Wiresk Services (including access to additional Users) if Client upgraded its Wiresk Plan, or (ii) implement the change in Wiresk Services on the next Billing Date if Client downgraded its Wiresk Plan. When upgrading its Wiresk Plan, Client shall pay the relevant fees to the Supplier, such fees being pro-rated from the date of change until the next Billing Date.

Client’S OBLIGATIONS

During the Term, Client shall comply with the terms and conditions of this Agreement, and with all applicable laws and regulations with respect to its activities under this Agreement.

Client shall provide Supplier with all necessary contact and billing details, and all necessary information as may be required by Supplier in order to provide Wiresk Services.

Client shall carry out all its responsibilities set out in this Agreement in a timely and efficient manner.

Client shall ensure that the Users use Wiresk Services in accordance with this Agreement and shall be responsible for any User’s breach of this Agreement.

Client shall ensure that its network, systems and applications comply with the relevant specifications provided by Supplier from time to time in order to provide Wiresk Services. Client shall be solely responsible (i) for procuring and maintaining its network connections and telecommunications links from its systems, and (ii) for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client’s network connections or telecommunications links or caused by the internet or its systems or its applications.

Client DATA

Client shall own all right, title and interest in and to all of Client Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Client Data.

In providing Wiresk Services, Supplier does not keep, store, archive or back up Client Data, except if Client opted in for a storage option through its Wiresk Account. If Client opted in for such an option, Client may recover its Client Data for a three-month period from the flow using the said Client Data, in accordance with the archiving procedure described in its Supplier’s Storage Policy (as published from time to time); then, Client Data is deleted.

In the event of any loss or damage to Client Data, Client’s sole and exclusive remedy shall be for Supplier to use reasonable endeavours to try restoring the lost or damaged Client Data from the latest Wiresk Services rendered to Client.

Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party.

In providing Wiresk Services, Supplier shall comply with its Data Protection Policy and Privacy Policy relating to the privacy of Client Data.

If Supplier processes any personal data on Client’s behalf when performing its obligations under this Agreement, Client and Supplier record their intention that Client shall be the data controller and Supplier shall be a data processor and in any such case:

Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Client and its Users are located in order to carry out Wiresk Services and other obligations under this Agreement.
Client shall ensure that it is entitled to transfer the relevant personal data to Supplier, so that Supplier may lawfully process and transfer the personal data in accordance with this Agreement on Client’s behalf.
Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such processing and transfer as required by all applicable data protection legislation.
in the event Supplier processes personal data, it shall process the personal data only in accordance with this Agreement and any lawful instructions reasonably given by Client from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

SUPPLIER’S OBLIGATIONS

During the Term, Supplier shall provide Wiresk Services in accordance with this Agreement.

Supplier undertakes that Wiresk Services will be performed substantially in accordance with the Wiresk Plan purchased by Client (the Undertaking).

The Undertaking shall not apply to the extent of any non-conformance, which is caused (i) by use of Wiresk Services contrary to Supplier’s instructions, or (ii) by modification or alteration of Wiresk Services by any party other than Supplier or Supplier’s duly authorised contractors or agents. If Wiresk Services do not conform to the Undertaking, Supplier will use reasonable endeavours to correct any such non-conformance promptly or provide Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Client’s sole and exclusive remedy for any breach of the Undertaking.

Notwithstanding the foregoing, Supplier:

does not warrant that Client’s use of Wiresk Services will be uninterrupted or error-free.
does not warrant that Wiresk Services and/or the information obtained by Client through Wiresk Services will meet Client’s requirements.
shall use reasonable endeavours to make Wiresk Services available 24 hours a day, 7 days a week, except for unscheduled maintenance performed by Supplier; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Client Data over communications networks and facilities, including the internet, the systems and the applications, and Client acknowledges that Wiresk Services may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities, including the internet, the systems and the applications.

If an error occurs while delivering Wiresk Services to Client:

Supplier shall use reasonable endeavours to correct any errors resulting from the development of Wiresk code as soon as practicable, and, in the meantime, provide Client with an alternative means of accomplishing the desired performance (if possible).
Supplier shall use reasonable endeavours to correct any errors resulting from changes made to the application programming interface (the API) of the third-party’s application integrated with Wiresk Services within a reasonable time, except if the API’s changes removed or substantially varied a feature of the said third-party’s application that Client was using in relation to Wiresk Services.
Supplier shall provide technical support to Client when Client’s configuration of Wiresk Services flags a technical error (for clarity, Supplier does not provide consultancy services on the rationale of a flow or the logic of series of flows); and

such correction or substitution or support (if possible) constitutes Client’s sole and exclusive remedy for any breach of the Undertaking.

This Agreement shall not prevent Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

Fees AND PAYMENT

Client shall pay the Fees to Supplier for the Wiresk Plan it purchased and for Wiresk Add-ons immediately upon receipt of the invoice (the Due Date) as follows, and in accordance with this Agreement:

the Fee for Client’s Wiresk Plan shall be invoiced, due and payable in advance on the Billing Date and on each monthly or annual anniversary of the Billing Date; and
the Fee for Client’s Wiresk Add-ons shall be invoiced, due and payable in arrears on each monthly anniversary of the Billing Date.

On Billing Date, Client shall provide to the Supplier’s designated third-party online payment provider (the Payment Provider) valid, up-to-date and complete credit card details (or any other acceptable payment details) and any other relevant valid, up-to-date and complete contact and billing details. By providing its credit card or payment details to the Payment Provider, Client hereby authorises Supplier to bill such credit card or other payment methods to settle any due and payable invoice.

If Supplier has not received payment within 7 calendar days after the Due Date, and without prejudice to any other rights and remedies of Supplier:

Supplier shall suspend the provision of Wiresk Services and shall be under no obligation to provide any of Wiresk Services while the invoice(s) concerned remain(s) unpaid.
Supplier may terminate Client’s Wiresk Account if payment has not been received on the third monthly anniversary of the Due Date, without any liability to Client; and
interest shall accrue on a daily basis on such due amounts at a monthly rate equal to 8%, commencing on 7 calendar days after the Due Date and continuing until fully paid (whether before or after judgment).

All Fees referred to in this Agreement (i) are stated in United States Dollars, (ii) shall be payable in United States Dollars, (iii) are non-cancellable and non-refundable, and (iv) are exclusive of value added tax.

Supplier shall be entitled to increase the Fees by giving Client a 30 calendar days’ prior written notice.

PROPRIETARY RIGHTS

Client acknowledges and agrees that Supplier own all intellectual property rights in Wiresk Services. Except as expressly stated herein, this Agreement does not grant Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of Wiresk Services.

THIRD PARTY PROVIDERS

Client acknowledges that Wiresk Services may enable or assist it to access the application or website content of, correspond with, and purchase products and services from, third parties via third-party application or website and that Client does so solely at its own risk.

Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party application or website, or any transactions completed, and any contract entered into by Client, with any such third party. Any contract entered into and any transaction completed via any third-party application or website is between Client and the relevant third party, and not Supplier.

Supplier recommends that Client refers to the third-party’s application or website terms and conditions and privacy policy prior to using the relevant third-party website. Supplier does not endorse or approve any third-party application or website nor the content of any of the third-party application or website made available via Wiresk Services.

CONFIDENTIALITY AND COMPLIANCE WITH POLICIES

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that (i) is or becomes publicly known other than through any act or omission of the receiving party, (ii) was in the other party’s lawful possession before the disclosure, (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure, or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.

Subject to clause 8.4 below, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

Client acknowledges that details of Wiresk Services, and the results of any performance tests of Wiresk Services, constitute Supplier’s Confidential Information.

Supplier acknowledges that Client Data is Client’s Confidential Information.

No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

The above provisions of this clause shall survive termination of this Agreement, however arising.

In performing their obligations under this Agreement, Client and Supplier shall comply with Wiresk Data Protection Policy and Wiresk Privacy Policy.

LIABILITY

Except as expressly and specifically provided in this Agreement:

Client assumes sole responsibility for results obtained from its use of Wiresk Services, and for conclusions drawn from such use; Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions, configurations or scripts provided by Client to Supplier in connection with Wiresk Services, or any actions or configurations taken by Supplier at Client’s direction.
Client assumes sole responsibility for its use and its configuration of third-party applications or websites made in relation to the use of Wiresk Services; Supplier shall have no liability for any damage caused by Client’s use and configuration of third-party applications or websites in connection with Wiresk Services.
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
Wiresk Services are provided to Client on an “as is” basis.

Nothing in this Agreement excludes the liability of Supplier (i) for death or personal injury caused by the Supplier’s negligence or (ii) for fraud or fraudulent misrepresentation.

Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

Supplier’s total aggregate 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 this Agreement shall be limited to the total Fees paid for the Wiresk Plan (for the avoidance of doubt, not including Wiresk Add-ons) during the 12 calendar months immediately preceding the date on which the claim arose.

INDEMNITY

Client shall defend, indemnify and hold harmless Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Client’s use of Wiresk Services, provided that (i) Client is given prompt notice of any such claim, (ii) Supplier provides reasonable co-operation to Client in the defence and settlement of such claim at Client’s expense, and (iii) Client is given sole authority to defend or settle the claim.

TERM AND TERMINATION

This Agreement shall, unless otherwise terminated as provided in this clause, commence on the Commencement Date and shall continue for the Initial Term. Thereafter, this Agreement shall be automatically renewed for successive periods of 12 calendar months, each a Renewal Term (the Initial Term together with any subsequent Renewal Terms shall constitute the Term), unless:

either party notifies the other party of termination in writing, in which case this Agreement shall terminate on the calendar day before the next Billing Date; or
otherwise terminated in accordance with the provisions of this Agreement.

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

Client fails to pay any amount due under this Agreement on the Due Date and remains in default not less than 3 calendar months and 7 calendar days after the Due Date.
the other party commits a material breach of any other term of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 calendar days after being notified in writing to do so.
the other party repeatedly breaches any of the terms of this 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 this Agreement.
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
there is a Change of Control of the other party.

On termination of this Agreement for any reason, (i) Client shall immediately cease all use of Wiresk Services, (ii) Supplier shall disable Client’s Wiresk Account, and (iii) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

If Client opted in for the storage option through its Wiresk Account, Supplier shall use reasonable endeavours to deliver the 3-month stored Client Data to Client within 30 calendar days of receipt of a written request made by Client within 7 calendar days from termination of this Agreement, provided that Client has paid all Fees outstanding at termination and resulting from termination (whether or not due at the date of termination) and all reasonable expenses incurred by Supplier in returning Client Data. At the expiry of these 7 calendar days of termination of this Agreement, Supplier shall destroy Client Data in its possession.

GENERAL

Conflict. If there is an inconsistency between any of the provisions in this Agreement and Wiresk Website, the provisions in this Agreement shall prevail.

Variation. Variation of this Agreement shall be effective between the Parties and applicable to Client upon sending of the variation notice by Supplier by email.

Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

Rights and remedies. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Entire agreement. This Agreement together with the benefits of Wiresk Plan on the date of purchase constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, representations and understandings between them relating to its subject matter. Each party acknowledges that in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any statement or representation that is not set out in this Agreement.

Assignment. Client shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement without the prior written consent of Supplier. Supplier may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

Third party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap.623).

Notices. Any notice required to be given under this Agreement shall be in writing, in English and shall be delivered by email. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender), or if receipt is not in Hong Kong business hours, at 9:00 a.m. on the first business day following receipt.

Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Hong Kong.

Jurisdiction. Each party irrevocably agrees that the courts of Hong Kong shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

GLOSSARY

Billing Date means the date on which Client purchases its first charged Wiresk Plan.

Change of Control means a change in the beneficial ownership of more than 50% of the issued share capital of a company or a change in the legal power to direct or cause the direction of the general management of the company, and controls and controlled shall be construed accordingly.

Commencement Date means the date of creation by Client of its Wiresk Account.

Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 8 “Confidentiality and Compliance with Policies”.

Client Data means the data inputted by Client or Users for the purpose of using Wiresk Services.

Fees means the fees payable by Client to Supplier for Wiresk Services in accordance with Wiresk Plan, Wiresk Add-ons and this Agreement.

Users means those employees, agents and independent contractors of Client, who are authorised by Client to use Wiresk Services within Client’s Wiresk Account.

Virus means any thing or device (including any software, code, file or programme) which may (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Wiresk Account means the email address and the password used by each Client to log in www.wiresk.com (or any other website notified to Client by Supplier from time to time) and access to Wiresk Services in accordance with its Wiresk Plan.

Wiresk Add-ons means any benefit added to the Wiresk Plan purchased by Client, such as additional credits, templates, users, flows, or any other items proposed by Supplier from time to time.

Wiresk Plan means the plan purchased by Client, which entitle Client or Users to access and use Wiresk Services in accordance with this Agreement.

Wiresk Services means the services provided by Supplier to Client under this Agreement via www.wiresk.com (or any other website notified to Client by Supplier from time to time), as more particularly described in Wiresk Plan and Wiresk Add-ons.