Terms and Conditions

§1 General contractual provisions

The present General Terms and Conditions apply to all contracts between Portal Software Solutions Ltd., Suite 2611, Langham Place Office Tower, 8 Argyle Street, Mongkok, Kowloon, Hong Kong called hereinafter "the Provider" and its contract partners, called hereinafter "the Customer", for the supply and delivery of services (especially in the fields of EDP or IT), programs, data, software and other goods, hereinafter called "the Products" (or "the Product") or "the Services" ( or "the Service"). All contracts between the Provider and the Customer take place exclusively based on the conditions listed below. The Customer accepts these conditions on awarding the contract and on accepting and approving the Services, even if they contradict his own terms and conditions completely or in part. Any variations from the conditions indicated below are not binding on the Provider, even if the Provider does not expressly oppose them.

§2 Offers and orders

2.1 All offers, orders and delivery periods for the Provider’s Services are subject to confirmation. The correct and timely delivery of the Service is subject to the Provider's ability to comply with the same.

2.2 All orders, as well as the chosen payment method, have to be placed in writing. After the Provider and the Customer have both signed the order and payment method, they are bound to their compliance.

§3 Deliveries, delivery periods and acceptance of Services

3.1 All delivery periods and/or deadlines are only binding if they have been established explicitly in the contract.

3.2 The delivery period agreed between the Provider and the Customer may be extended or postponed accordingly should the Provider be impeded from delivering the Services agreed on due to transient and unforeseeable reasons for which the Provider cannot be deemed responsible. Such is the case of worker strikes or trade union actions including those of third parties possibly contracted by the Provider in order to comply with the delivery of the Services which are the object of this contract, official or governmental action, power failures or malfunction or failure of such transmission or communication media the maintenance of which the Provider has no control of (e.g. Internet backbone failure), as well as in case of force majeure or Acts of God.

3.3 Should the Provider fall into default without having delivered the Services agreed on, his liability is determined by the provisions of sections 8 and 9 of this contract. The Customer may only rescind the contract entered into in the event of the Provider failing to comply with a grace period set by the Customer, which must be at least of four weeks.

3.4 The Customer shall undertake to determine the compliance of the Services with those described in the contract and accept delivery of the same as soon as the Provider has indicated the completion of the contracted Services and made them available for delivery. In the context of IT planning and software development, the test data provided by the Customer shall be used for this purpose. Should no defects reducing the value or suitability of the Services for normal or contractually determined use or only some minor limitations be found by the Customer on delivery, the Customer shall accept the Services without delay and attest to this fact in writing, while describing in a separate list minor and not relevant defects to be corrected by the Provider in the short-term and as soon as possible. Should the Customer apply the provided Services to commercial use, either wholly or partially, or should the acceptance by the Customer not be effected within fourteen days counted from the stipulated date of acceptance, the Customer shall be obliged to issue the acceptance confirmation immediately.

§4 Copyright and other intellectual property rights, and export regulations

The Provider shall not be held liable for the infringement of any patents, intellectual property rights or copyrights under any circumstances. All delivered Services, tangible and intangible, are to be used exclusively in the United States, Canada, Germany, Austria, Switzerland, Denmark, Sweden, Norway, Finland, France, Belgium, the Netherlands, Italy, Spain, Luxembourg, Greece, Portugal, United Kingdom, Ireland, Australia, New Zealand, Hong Kong and Japan. Any export requires a short written consent by the Provider.

§5 Reservation of proprietary rights

5.1 In the event of license agreements or/and leases, all proprietary rights to the Services and /or the communication facilities delivered shall be deemed belonging to the Provider and/or his partners or suppliers. Under no circumstances can they be made available to third parties without explicit written consent being given by the Provider. Should any copyrights or intellectual property rights on the delivered Services be owned wholly or partially by third parties, these rights will be also recognized by the Customer, even without written confirmation. Under no circumstances may the Customer manipulate, copy, or redistribute without permission the Services put at his disposal. The use of Reverse Engineering Methods (decompilation and disassembly) is also strictly forbidden.

5.2 The Services provided according to purchase contracts remain the property of the Provider until payment is completed in full and/or until contractual completion of all claims against the Provider. Until this time the Services may therefore not be either disposed of (sold), rented, leased, loaned, pledged or modified. As long as the contractual fulfillment of the claims has not yet been completed in full, the Provider may, in the event of the Customer’s delay, ask at any time to be allowed an inspection or even the surrender of the delivered services. If the Customer has provided access to the delivered services to a third party in any way, the third party shall be advised in any case about the proprietary rights belonging to the Provider. If the services are no longer in possession of the Customer, all claims relating to the provided services shall be transferred to the Provider. Any surrender of the delivered services to third parties or the seizure thereof must be immediately notified by the Customer to the Provider.

§6 Delivery of Services

Shipment is usually done from the offices or location of the Provider. All shipments, including possible return consignments, are at the expense and risk of the Customer, unless otherwise agreed in writing. Therefore, the Provider recommends the Customer to use insured shipments, as the risks are transferred to the Customer automatically on the moment the Products leave the Provider’s warehouse. The Customer has complete free choice of the shipping method and company and of the insurance value of the shipment. Should the Customer make no decision, the Provider reserves the right to undertake the above decisions by himself. Specific wishes as to shipment methods, providers, and insurance values should be advised in writing to the provider in advance, at latest when placing the order. Shipment costs are in any case at the expense of the Customer, except if special contractual provisions have been agreed on.

§7 Prices, payments, maturity and security deposit

7.1 All indicated prices are net and from the offices or warehouse of the Provider. All Services provided to Customers whose Company or private address is located outside of Hong Kong are in principle free of Value Added Tax. Payments will be effected as agreed in writing in the contract.

7.2 All contracts for Services for which fixed prices were not expressly agreed upon, will be calculated based on the hourly price lists that are valid on the date of delivery. Services, which are charged based on time, will be settled at the agreed hourly rates as per previous arrangement in quarterly or monthly installments. Any additional charges and /or costs incurred in as a result of the execution of the contracted Services will be settled when they occur. Drafts are explicitly not admitted as payment method.

7.3 The Customer may only set off undisputed or legally established claims against valid demands of the Provider. The Customer has the right of retention only for counter-claims derived from this contract.

7.4 The Provider of the Service reserves the right to require from the client a deposit of double the value of the Products in case of cession of objects (e.g., servers, IT hardware, etc).

§8 Warranty and Liability

8.1 The provider shall only be held liable for damages, regardless of whatever legal reason, including default, impossibility, negligence in concluding the contract, positive breach of contract, culpable failure to comply with repairs or corrections obligations and tort, if it or its legal representatives or agents have acted with intent or gross negligence or if the damages are due to the absence of a contractually promised features. Regarding promised features, the Provider shall only be held liable for such damages as are included in the promise.

8.2 The warranty is limited to the Provider’s free choice between the exchange of the defective Product, a once-only attempt to repair the Product or the reimbursement of the purchase price of the defective Service or Product and / or part of a Product. The Customer must allow the Provider a reasonable time to remove the defect. Following a Customer’s complaint, the delivered Products must be made available in any case to the Provider, or eventually, upon the Provider's request be returned to him to verify or rectify the declared defect. No guarantee or / and warranty claims can be made for defects, damages or consequential damages that result from improper use or operation. The guarantee or liability is limited exclusively to the functioning and promised properties of the delivered Products. In case of advisory services, unless there is a written consulting contract that has been signed by both parties, no liability shall be accepted in principle.

8.3 The Provider grants explicitly no guarantee on Services provided by third parties. In case of errors or damages incurred in by third party providers, the Provider will consider potential reparations individually and will not necessarily be bound to provide compensation.

§9 Damages

9.1 The Provider assumes no liability for direct damages, consequential damages or lost profit due to such technical problems and failures within the Internet that are not within his sphere of influence. The Provider assumes no liability either in case of minor violations of contractual responsibilities caused by slight negligence. This violation does not apply in all cases and is subject to the provisions of Product Liability Law.

9.2 The Provider is only liable to businesses for indirect and consequential damages as well as for lost profit in case of intent and gross negligence. In this case, the liability of the Provider is limited to the typical contractual foreseeable damages, up to a maximum of 100% of the annual net or system rent.

9.3 Malfunctioning originated at data processing centers or suppliers will be fixed as a rule by the support service of the respective supplier. Therefore, the Provider can accept no liability for the duration of the malfunction and the related failure. The Provider will eventually take over the coordination (e.g. the communication with the support service of the supplier) to correct the malfunction and, should the need arise, offer a cost-free replacement system.

9.4 Should a liability of the Provider be required by law, the Provider shall only be liable for gross negligence or any intentionally caused damages, losses, and similar; any liability for slight negligence is excluded explicitly and this also applies to the Provider’s own fault or organic fault and/or fault of agents, representatives and assistants. Liability for damages or loss that is due to force majeure or Acts of God is excluded. Insofar the liability of the Provider is excluded under the preceding provisions, this also applies to the personal liability of employees, workers, assistants, representatives and agents of the Provider.

§10 Dismantling and return of ceded objects at end of contract

The dismantling and return shipment of the objects after the regular or premature termination of the contract without responsibility of the Provider will be made by the Provider or his agents, representatives or assistants at the expense of the Customer and will be charged according to wages, transportation costs, and material consumption.

§11 Premature contract termination and / or cancellation by the Customer

11.1 Should the Customer, in case of a license agreement or lease contract, due to reasons not imputable to the Provider, advise the Provider that he or she does not intend to continue using the ceded objects, the Provider accepts, under the exact provisions agreed on in the contract, to rescind it within three months.

11.2. For such services the Provider has offered a minimum contract period (for example, web portals) and no special conditions have been provided for in the contract, premature termination only is possible in case of intent or grossly negligent fault on the part of the Provider.

11.3 Significant or persistent breaches of contract by the Customer entitle the Provider to premature and unilateral contract termination. In this case, the provider is entitled to an immediate lump-sum payment for damages for 90% of the original invoice amount.

§12 Prohibition of unlawful content

12.1 The users of the Provider’s Services are forbidden to upload textual and /or pictorial or other content contrary to existing laws to the Internet Webpages created as a Service by the Provider. This affects in particular such content that is contrary to specific penal provisions, such as offensive, threatening, inciting to crime, racist or similar expressions and contents. It is also prohibited to upload any content to the Internet Webpages of the Provider under the form of commercial advertisements showing products or programs of third parties or to use in an unauthorized manner material whose copyright, trademark or proprietary rights belong to third parties.

12.2 The users of the Customer’s Services guarantee compliance with the rights of third parties.

§13 Ancillary agreements and partial effectiveness, place of fulfillment and jurisdiction

13.1 Verbal agreements between the Provider and the Customers are not binding to Law and any changes and/or additions will only be effective following a confirmation in writing by the Provider.

13.2 The Customer may only transfer the rights and obligations under the contract to third parties only after prior consent of the Provider.

13.3 The contract and the General Terms and Conditions shown here will be considered as valid as a whole even in case of legal invalidity of individual provisions and /or sections and /or conditions. Should this situation occur, the remaining valid provisions would be fully effective. This will however not apply if the observance of the contract constitutes an unreasonable hardship for one of the involved parties.

13.4 The contractual relations of the parties are subject to the Law of Hong Kong.

13.5 The place of fulfillment for all obligations under the contract between the Provider and the Customer and venue for all contractual disputes arising from the contract and its effectiveness is the location of the Provider, as indicated in Section 1.

13.6 The Provider’s General Terms and Conditions are legally valid in all three language versions including English, Spanish and German. However, in case of any discrepancy or ambiguity, the English version shall prevail.