The following definitions and rules of interpretation apply in these Conditions.

1.1     Definitions:

Brief: a document that outlines the Customer’s project so that the Supplier has the same information to work with. The Brief shall address the questions in the Questionnaire with sufficient details to provide all information needed by the Supplier to provide the Services.

Business Day: a day other than a Saturday, Sunday or public holiday in Hong Kong, when banks in Hong Kong are open for business.

Business Hours: the period from 9.00 am to 6.00 pm on any Business Day.

Commencement Date: has the meaning given in clause Error! Reference source not found..

Conditions: these terms and conditions as amended from time to time in accordance with clause Error! Reference source not found..

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases the Services from the Supplier.

Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.

Force Majeure Event: has the meaning given to it in clause Error! Reference source not found..

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up [and trade dress], goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer's order for the supply of Services, as set out in the Customer's written acceptance of the Supplier's quotation.

Questionnaire: the questionnaire provided by Supplier to the Customer and completed by the Customer itself or by the Supplier as part of the Services, in order to create the Brief.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Order.

Supplier: Olivier Millier Limited registered in Hong Kong with company number 2917964.

Supplier Materials: all materials, equipment, documents and other property of the Supplier.

1.2     Interpretation:

a.       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

b.       A reference to a party includes its personal representatives, successors and permitted assigns.

c.       A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

d.       Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

e.       A reference to writing or written excludes fax and email.

1.1     The Customer’s written acceptance of the Supplier’s quotation constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

1.2     The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

1.3     Any samples, drawings, descriptive matter or advertising issued by the Supplier and any illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract nor have any contractual force.

1.4     These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

1.5     Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

1.6     The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

1.1     The Supplier shall supply the Services to the Customer in accordance with the Brief in all material respects.

1.2     The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Supplier’s quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

1.3     The Supplier reserves the right to amend the Brief if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

1.4     The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

1.1     The Customer shall, in a timely manner compatible with the schedule agreed for each Deliverable:

a.       ensure that the terms of the Order and any information it provides in the Brief are complete and accurate;

b.       co-operate with the Supplier in all matters relating to the Services;

c.       provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

d.       comply with all applicable laws, including health and safety laws.

1.2     If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

a.       without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

b.       the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause ‎1.2; and

c.       the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

1.1     The charges for Services are set out in the Supplier’s quotation.

1.2     The Supplier reserves the right to increase the charges for the Services in the event of Customer Default.

1.3     The Customer shall pay each invoice submitted by the Supplier:

a.       within 7 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

b.       in full and in cleared funds to a bank account nominated in writing by the Supplier, and

c.       time for payment shall be of the essence of the Contract.

1.4     If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause Error! Reference source not found., the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause ‎1.4 will accrue each day at the higher of 4% a year or the Hong Kong and Shanghai Banking Corporation dollar best lending rate from time to time.

1.5     All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

1.1     All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

1.2     Subject to full payment of the invoices by the Customer, the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding (i) materials provided by the Customer and (ii) working versions of the deliverables produced by the Supplier prior to the final version) for the purpose of receiving and using the Services and the Deliverables in its business.

1.3     The Customer may sub-license, assign or otherwise transfer the rights granted by clause ‎1.2.

1.4     The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

Unless informed to the contrary by the Customer in writing, the Supplier may use the name of the Customer in promotional materials.

1.1     The restrictions on liability in this clause Error! Reference source not found. apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

1.2     Nothing in the Contract limits any liability which cannot legally be limited.

1.3     Subject to clause ‎1.2, the Supplier's total liability to the Customer shall not exceed 50% of the Supplier’s quotation.

1.4     This clause shall survive termination of the Contract.

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

a.       the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 20 Business Days after receipt of notice in writing to do so;

b.       the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

c.       the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

d.       the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

1.2     Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

1.3     Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause ‎b to clause ‎d, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

1.1     On termination of the Contract:

a.       the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

b.       the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

1.2     Termination of the Contract shall not affect any rights, remedies, obligations and 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 Contract which existed at or before the date of termination.

Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving 20 Business Day’s written notice to the affected party.

1.1     Assignment and other dealings.

a.       The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

b.       The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

1.2     Notices.

a.       Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

                        i.         delivered by hand, by registered post with acknowledgment of receipt or by international courier to the address specified in Clause ‎1.2.‎1.i.i (or to such other address as a party may notify the other party in accordance with this Contract; or

                       ii.         sent by email with receipt request to the email address specified in Clause ‎1.2.‎1.i.i (or to such other address as a party may notify the other party in accordance with this Contract.

b.       Any notice shall be deemed to have been received:

                        i.         if delivered by hand, at the time the notice is left at the proper address;

                       ii.         if sent by registered post with acknowledgment of receipt or by international courier, at the date shown on the acknowledgment of receipt; or

                      iii.         if sent by email, at the date of delivery receipt of the email.

c.       The addresses for service of notices are:

Supplier

Contact name
Olivier Millier

Email
contact@eclow.com

Address for correspondence
Unit 1603, 16th Floor, The L. Plaza, 367 - 375 Queen's Road Central, Sheung Wan, Hong Kong

Customer details
See quotation

d.       This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

1.3     Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause ‎1.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

1.4     Waiver. A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

1.5     No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

1.6     Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

1.7     Third party rights.

a.       The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Ordinance (Cap.623) to enforce any term of the Contract.

b.       The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

1.8     Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

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

1.10    Jurisdiction. The parties shall first attempt to settle any Dispute by mediation at the Hong Kong International Arbitration Centre (HKIAC) and in accordance with its then current mediation rules. The mediation will take place in Hong Kong and the language of the mediation will be English. Any agreement reached through mediation shall be governed by, and construed and take effect in accordance with, the law of Hong Kong.

1.11    In case a Dispute cannot be settled by mediation, it shall be referred to and finally resolved by the courts of Hong Kong which shall have exclusive jurisdiction.