Your Agreement with Switch Technology Holding

1.                    ACCEPTANCE OF THIS AGREEMENT; KEY TERMS

1.1                 The Platform (as defined below) is provided to you on the terms and subject to the conditions set out in this Agreement. By accessing the Platform, you accept that you have read, understood and agree to be bound by this Agreement. For the purpose of this Agreement, and wherever the context so requires, the terms "you" and "your" shall mean or refer to any person who is using the Platform as a Service Provider, or is otherwise exercising rights under this Agreement.

1.2                 The following definitions apply throughout this Agreement, unless the contrary intention appears:

Business Day

means a day (except Saturdays, Sundays and public holidays) on which banks in HK are open for normal banking business;

Booking Statement

has the meaning given in clause ‎2.5.1(a) and "Booking Statements" shall be construed accordingly;

Commencement Date

has the meaning given in clause ‎11.1;

Commission

has the meaning given in clause ‎2.4.1;

Commission Percentage

means 15% or 25% (or such other percentage as may be agreed between Switch and a Vendor from time to time); 

Confidential Information

has the meaning given in clause ‎14.1;

Conversion

has the meaning given in clause ‎5.1.1;

End User 

means a customer or attendee of one or more Experiences and/or Events; 

End User Booking

has the meaning given in clause ‎2.7.2;

End User Data

has the meaning given in clause ‎2.7.1;

Event

means any interactive health, fitness or wellness event to be hosted by a Service Provider at a Facility or any other location and "Events" shall be construed accordingly; 

Experience

means any interactive, single or multi-day health, fitness or wellness activity or other related consultation session or service to be hosted by a Service Provider at a Facility or any other location and "Experiences" shall be construed accordingly;

Extenuating Circumstances

means:

-       the unexpected death or serious illness of key personnel employed or otherwise mandated by a Service Provider to host the relevant Experience(s) and/or Event(s) booked by an End User; 

-       serious injury of key personnel employed or otherwise mandated by a Service Provider to host the relevant Experience(s) and/or Event(s) booked by an End User; or

-       the loss of any Facility to be used by a Service Provider in order to host the relevant Experience(s) and/or Event(s) booked by an End User.

Facility

means the physical location or premises made available by Switch at which the relevant Experience(s) and/or Event(s) shall take place;

Force Majeure

means, in relation to either party, any total or partial failure of performance by it of all or some of its duties and obligations under this Agreement to the extent such failure is occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo or prevention from or hindrance in obtaining any energy or other similar supplies;

HK

means Hong Kong; 

Information

has the meaning given in clause ‎2.2.1;

Intellectual Property Rights

means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .com, .nl, .fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world;

Net Amount

has the meaning given in clause ‎2.5.1(c);

Offering

means the offering of Experiences and/or Events by a Service Provider and "Offerings" shall be construed accordingly; 

Permitted Persons

has the meaning given in clause ‎14.2.2;

Platform

means the website(s), mobile applications, tools, platforms or other devices of Switch on which the System is made available;

Platform Proceeds

has the meaning given in clause ‎2.5.1(b);

Ranking

has the meaning given in clause ‎5.1.1;

Rate Parity

means the same or better rates for the same Event, Experience and/or Product as are available on the websites, applications, platform, tools or other devices owned or operated by or on behalf of the Service Provider or directly from the Service Provider, with any competitor of Switch (which includes any online or offline reservation or booking system or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Service Provider;

Representative

has the meaning given in clause ‎10.1;

Service Provider

means a person who creates an Offering via the Platform and "Service Providers" shall be construed accordingly; 

System

means the online booking system of Switch through which:

-       Service Providers can make their Offerings available and list any of their Services available for purchase by End Users at any Experiences and/or Events; and 

-       End Users can make bookings of Experiences and/or Events comprised in such Offerings.

Term

has the meaning given in clause ‎11.1;

Third Party Platforms

has the meaning given in clause ‎3.2;

VAT

means value added tax and any similar sales or turnover tax applicable in HK; and 

Working Hours

means 9:00am to 5:00pm on a Business Day. 

2.                    YOUR OBLIGATIONS

2.1                 Performance Standards

2.1.1             You shall:

(a)                  using all reasonable skill and care, provide the Experiences and/or Events booked by End Users from the Commencement Date for the Term; and 

(b)                  use reasonable endeavours to ensure that such provision is: 

(i)                   in compliance with any performance standards or principles issued by Switch, from time to time; 

(ii)                 in compliance with the performance standards and/or qualifications criteria issued by any external, regulatory or other certifying body applicable to you; and  

(iii)                to a scope and standard (in terms of specification and service level) at least equivalent to the scope and standard to which such Offering would be provided by a reasonably experienced Service Provider.

2.2                 Information

2.2.1             Information provided by you for inclusion on the Platform (the "Information") shall comprise (without limitation) images, photos, videos and business listings/information, and will include:

(a)                  information about your Offering (for instance, a service description, booking rates (including all applicable taxes, levies, surcharges and fees), the identity of the Facility or other location and calendar availability);

(b)                  any deficiencies, restrictions and requirements that apply (for instance, any minimum age, proficiency or fitness requirements relevant for attendance of an Experience or Event); 

(c)                  other pertinent details requested by Switch, from time to time.  

2.2.2             Switch reserves the right to edit or exclude any Information on becoming aware that it is incorrect, incomplete or in violation of the terms and conditions of this Agreement. 

2.2.3             You represent and covenant that the Information shall, at all times, be true, accurate and not misleading. You are, at all times, responsible for a correct and up-to-date statement of the Information, including additional availability for certain periods or extraordinary (materially adverse) events or situations. You shall update the Information in a timely manner and may, at any time, change via the Platform: 

(a)                  the booking rate per available Experience or Event; 

(b)                  the number of available Experiences or Events that can be booked by End Users and the allocated time slots for each such Experience or Event; and

(c)                  the availability or price of any Product that can be purchased by End Users at a Facility or any other location in conjunction with any Experiences and/or Events taking place there. 

2.2.4             The information provided by you for the Platform shall remain your exclusive property. Information, which is: 

(a)               provided by Switch (including, without limitation, all and any existing files, images, photos, videos, sounds, business listings/information and directory information or any other material made available by Switch on or external to the Platform); or 

(b)             provided by you and subsequently edited or modified by Switch (and approved by you); or

(c)              developed in collaboration by you and Switch, 

shall remain the exclusive property of Switch and shall not be used (in any way or form) by you for any other purposes (distribution, sales channel or otherwise), without the prior written consent of Switch. 

2.2.5             Unless Switch otherwise agrees, all updates of, changes and/or amendments to the Information (including booking rates, prices and availability of Experiences, Events and/or Products) shall be made by you directly either online through the Platform, or via any mobile application, or by such other means as Switch may reasonably indicate.

2.3                 Rate Parity

2.3.1             You shall, for the Term of this Agreement, give Switch Rate Parity and the restrictions and conditions (including the booking rate per Experience and/or Event) for Experiences and Events made available by you via the Platform shall, at all times, be in accordance with this clause ‎2.3 and make sense for all parties involved (including End Users).

2.3.2             Within the spirit of this Agreement and subject, at all times, to Rate Parity, you are encouraged to provide Switch with fair access to all Experiences and Events (including various associated policies and restrictions) comprised in your Offering and the rates and prices available during the Term of this Agreement (during periods of low and high demand). 

2.4                 Commission

2.4.1             For all: 

(a)                  Experiences and/or Events hosted by you at your location or at a third party location, booked and attended by End Users coming through the Switch app; and

(b)                  Experiences and/or Events hosted by you at Switch spaces (e.g. partner hotels) and booked by End Users on the Platform; 

Switch shall charge you a sales and marketing fee, calculated in accordance with clauses ‎2.4.2 or 2.4.3 (the "Commission"). The exact rate of commission is determined by your package - Basic (25%) or Performance (15%).

2.4.2             Unless agreed otherwise between you and Switch, the aggregate Commission for Experiences, and/or Events hosted by you and booked or attended by the End User booked on the Platform, is equal to the multiple of:

(a)                  the number of Experiences, and/or Events hosted by you and booked or attended by the End User booked on the Platform; 

(b)                  the booked rate per Experience or Event (as at the time the booking was made by the End User); and

(c)                  the Commission Percentage.

2.5                 Payment of Commission

2.5.1             Subject to clause ‎2.8, the Commission for bookings and purchases made through the platform in any one calendar month (the (scheduled) attendance date of the End Users of such bookings being within that same month) will be remitted in accordance with the following terms:

(a)                   a statement of Experiences and/or Events hosted by you and booked by End Users on the Platform and the corresponding Commission will be issued to you electronically by Switch on a bi-weekly basis (the "Booking Statement");

(b)                  Switch will deduct the Commission from the total monies received from End Users that have booked one or more Experience(s) and/or Event(s) with you via the Platform ("Platform Proceeds");

(c)                  the remaining balance after deduction of the Commission ("Net Amount") will be paid out to you in Hong Kong dollars, on the 5th day of each calendar month following the issuance of each Booking Statement, provided always that Switch has received remittance of the Platform Proceeds from the payment gateway provider and received an invoice from you;

(d)                  payment of the Net Amount shall be made by Switch directly to you by wire transfer (to such bank account as identified by you) and you shall bear all costs as charged by your bank for the transfer of the Net Amount.

2.6                 Subscription

2.6.1             If you have agreed to sign up to the Switch Performance package, the platform subscription is $1500 HKD per month. Payment of the subscription must be done in advance via credit card autopay or online bank transfer. 

2.6.2             In order to terminate the subscription, the Service Provider must give 30 days’ notice in writing, as per the termination clause (11.1).

2.7                 Taxes

2.7.1             Any sum payable under this Agreement shall be deemed to be exclusive of any VAT which is chargeable on the supply for which that sum is consideration for VAT purposes. The person receiving the supply shall pay any amounts of VAT in addition to any amounts payable under this Agreement upon the delivery of a VAT invoice. 

2.8                 Bookings and Complaints

2.8.1             When a booking is made by an End User on the Platform, you will receive a confirmation, which shall include the date and number of Experiences and/or Events booked, the Experience/Event type and booking rate, the End User’s contact details (collectively the "End User Data") and such other specific requests made by the End User. Switch is not responsible for the correctness and completeness of the End User Data.

2.8.2             By making a booking through the Platform, a direct contract and legal relationship is created between you and the End User (the "End User Booking").

2.8.3             You are bound to accept the End User as your contracting counterpart and to handle the End User Booking in compliance with the Information (including the booking rate) contained on the Platform at the time the booking was made and the booking confirmation, including any supplementary information and/or requests made known by the End User. 

2.8.4             To the extent possible, all correspondence and communications between you and the End User shall be made through the Platform and within the context of this Agreement.

2.8.5             Complaints or claims in respect of your Offering, your supply of Services or specific requests made by End Users are to be dealt with by you, without mediation by or the interference of Switch. Switch is not responsible for and disclaims any liability in respect of such claims from the End Users.  

2.9                 Booking Modifications, Cancellations and Refunds

2.9.1             You shall provide the Experiences and/or Events booked by End Users and in the event that you are unable to meet your obligations under this Agreement, for any reason whatsoever, you shall promptly notify Switch and, to the extent affected, the End User.

2.9.2             You are responsible for any modifications to a booking that are made via the Platform and agree to liaise directly with the End Users in respect of any additional fees, extras and (sur-)charges, which Switch has prescribed, in any modification, cancellation or refund policy issued by Switch, from time to time, as being applicable thereto.

2.9.3             In the event that no Experience and/or Event is available to an End User due to an overbooking, you shall:

(a)                  find a suitable alternative Experience and/or Event of an equal or superior standard to the Experience(s) and/or Event(s) holding the End User’s guaranteed booking.

2.9.4             In the event that you are unable to meet your obligations under clause ‎2.8.3(a), the End User will receive a full refund from Switch. 

2.9.5             You are not permitted to cancel any booking made by an End User on the Platform, unless: 

(a)                  both Switch and the End User have been notified of such cancellation at least 24 hours before the End User’s scheduled attendance date of the Experience and/or Event; or

(b)                  cancellation is made for one or more Extenuating Circumstances.

2.9.6             Any booking made by an End User on the Platform that is cancelled by you pursuant to clauses ‎2.8.5(a)or ‎2.8.5(b)will not attract Commission and the End User will receive a full refund from Switch.

2.9.7             Any booking made by an End User on the Platform that is cancelled by you and not in compliance with clauses ‎2.8.5(a)or ‎2.8.5(b)will attract Commission (which shall be payable by you in accordance with the terms and subject to the conditions of this Agreement) and the End User will receive a full refund from Switch.

2.9.8             Any booking made by an End User on the Platform that is cancelled by such End User at least 24 hours before that End User’s scheduled attendance date of the Experience and/or Event, will not attract Commission and the End User will receive a full refund from Switch. 

2.9.9             Any booking made by an End User on the Platform that is cancelled by such End User less than 24 hours before that End User’s scheduled attendance date of the Experience and/or Event, or cases of no-show, will attract Commission, you will receive your payment and the End User will not receive any refund from Switch.

2.10               Direct Marketing to End Users

You agree not to specifically target End Users that have been obtained via Switch to by-pass the Switch booking platform to book your services. You are however permitted to promote your services to End Users acquired by Switch, in either online or offline marketing promotions.

2.11               Platform

You will gain access to the Platform by way of a user ID and password, which shall be generated by you. You shall safeguard and keep the user ID and password confidential and safely stored and shall not disclose such information to any person other than those who need to have access to the Platform for the purpose of this Agreement. You shall immediately notify Switch of any (suspected) security breach or improper use. 

3.                    LICENSE 

3.1                 You hereby grant Switch a non-exclusive, royalty free and perpetual worldwide right and license:

3.1.1             to use, reproduce, have reproduced, distribute, communicate and make available in any method and display those agreed upon elements of your Intellectual Property Rights as provided to Switch by you pursuant to this Agreement and which are necessary for Switch to exercise its rights and perform its obligations under this Agreement;

3.1.2             to use, reproduce, have reproduced, process, distribute, display and utilise (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the Information;

3.2                 In the event that any use of the license does not comply with your brand guidelines or quality standards, you reserve the right to request that the necessary corrective measures be taken as soon as possible by Switch or for the item in question to be removed from public channels.

3.3                 In no event shall Switch be liable to you for any acts or omissions on the part of any Third Party Platforms. The sole remedy for you in respect of such Third Party Platforms is:

3.3.1             to request Switch (which has the right and not the obligation) to disable and disconnect with such Third Party Platform; or 

3.3.2             termination of this Agreement, all in accordance with the terms and subject to the conditions of this Agreement.

4.                    NO ENDORSEMENT

4.1                 Switch does not endorse you and the Information is intended only to indicate a representation of your Offering provided at the time the Information was published. The content available on the Platform is not therefore an endorsement by Switch of any Service Provider. 

4.2                 By using the Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of any Facility, manufacturer, supplier or other third party will be limited to a claim against the particular Facility, manufacturer, supplier or other third party who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Switch with respect to such acts or omissions.

5.                    RANKING, REVIEWS AND MARKETING

5.1                 Ranking

5.1.1             The order in which you are listed on the Platform (the "Ranking"), is determined automatically and unilaterally by Switch. Ranking is based on and influenced by various factors, including but not limited to, the minimum availability stated by you, the number of bookings related to the number of visits to the relevant services page on the Platform (the "Conversion"), the volume realised by you, the ratio of cancellations, End User review and overall satisfaction scores, service history and previous bookings/purchases, End User popularity and preferences and the number and type of complaints received from End Users.

5.2                 End User Reviews

5.2.1             End Users, who have attended Experiences and/or Events hosted by you will be asked by Switch to comment on their experience with you and to provide a score for certain aspects of their experience.

5.2.2             Switch reserves the right to publish these comments and scores on the Platform. 

5.2.3             Switch undertakes to use its reasonable efforts to monitor and evaluate End User reviews in respect of obscenities, false information or the mention of an individual's name. Switch reserves the right to refuse, edit or remove unfavourable reviews in the event that such reviews include obscenities, inaccurate or false information or mention an individual's name.

5.2.4             Switch shall not have and disclaims any liability and responsibility for the content and consequences of (the publication or distribution of) any comments or reviews howsoever or whatsoever.

5.3                 Marketing 

5.3.1             Switch is entitled to promote you using your name(s) and branding (including, without limitation, all and any files, images, photos, videos, sounds, social media and/or business listings/information and directory information or any other material made available by you on the Platform) for the purpose of both offline and online marketing, including email marketing and/or pay-per-click (PPC) advertising. Switch runs online marketing campaigns at its own costs and discretion. As per clause 3.2, you reserve the right to request edits or removal of any marketing content that does not comply with your brand guidelines.

5.3.2             You agree not to specifically target the Switch brand directly through keyword purchases that use Switch’s Intellectual Property Rights.

6.                    INSURANCE

6.1                 You undertake to obtain and maintain, at your own expense, a policy or policies of insurance with reputable insurers, valid and enforceable in each of the jurisdictions in which you are making an Offering and (where applicable) selling your Products, against potential liabilities under or in relation to this Agreement.

6.2                 You shall allow Switch to inspect such policy/policies or certificates of insurance obtained and/or maintained by you pursuant to clause ‎6.1and shall provide copies of the same at Switch’s request, together with copies of all renewals and evidence that all premiums due have been paid. Neither inspection, nor receipt of such copies shall constitute acceptance by Switch of the terms thereof or a waiver of your responsibilities hereunder.

7.                    REPRESENTATIONS AND WARRANTIES

7.1                 You represent and warrant to Switch that for the Term:

7.1.1             you have all necessary rights, power and authority to use, operate, own, sell (as applicable), (sub)license and have Switch make available and/or advertise on the Platform:

(a)                  the relevant Experiences, Events and Products; and 

(b)                  the Intellectual Property Rights, 

in respect of, as set out or referred to in the Information made available on the Platform.

7.1.2             you comply with all applicable laws, and hold all permits, licenses and other governmental authorisations and requirements necessary for conducting, carrying out and continuing your operations and business, making the Experiences and Events available on the Platform for booking by End Users and (where applicable) selling the Products to End Users at a Facility or any other location in conjunction with any Experiences and/or Events; 

8.                    INDEMNIFICATION 

8.1                 Each party agree to defend, indemnify and hold each other, and each others’ lenders, parent companies, affiliates, officers, directors, agents and employees, harmless from and against any claims, losses, damages and liabilities (including, but not limited to, reasonable attorneys fees and court costs, but excluding consequential damages) on account of any claim by a third party for bodily injury or property damage against the indemnified party to the extent caused by the negligent act or omission, or wilful misconduct of, or breach of this agreement by, the indemnifying party or the indemnifying party’s employees, contractors, subcontractors or agents, in connection with the performance of their respective obligations under this agreement.

9.                    LIMITATION OF LIABILITY

9.1                 Neither party to this agreement is liable for any damages, costs or losses to any person, any diminution in value, or any liability whatsoever, unless directly caused by its or their negligence, wilful default or fraud.

9.2                 Neither party to this Agreement is liable for:

9.2.1             any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising from any cause beyond its reasonable control and the effect of which is beyond its reasonable control to avoid; or

9.2.2             any damages, costs or losses to any person, any diminution in value, or any liability whatsoever that it could not reasonably have anticipated when it gave the other party an instruction; or

9.2.3             any loss of business, loss of goodwill, loss of opportunity or loss of profit.

9.3                 Nothing in this Agreement will exclude or limit any duty or liability that applicable laws do not allow to be excluded or limited. 

10.                 SERVICE MANAGEMENT AND ESCALATION

10.1               With effect from the date of this Agreement, each of the parties shall appoint a representative (the "Representative") who shall be:

10.1.1          generally responsible for managing the overall performance of that party's obligations under this Agreement;

10.1.2          authorised to agree to any minor variation to, and/or minor waiver in respect of, this Agreement that may be requested from time to time; and

10.1.3          generally available during (and in exceptional circumstances outside) Working Hours to discuss (whether in person or otherwise) any aspect of this Agreement.

10.2               Each party may replace its Representative from time to time (on written notice to the other party) with a person of equivalent business seniority.

10.3               Each party shall notify the other of the contact details of its Representative and shall thereafter promptly notify the other of any temporary or permanent change to the contact details of the Representative.

10.4               Any dispute or difference which arises between the parties, shall if not first resolved by the relevant operational managers, be referred to the parties' Representatives for determination.

11.                 TERM, TERMINATION AND SUSPENSION

11.1               Unless agreed otherwise, this Agreement shall commence on the date hereof ("Commencement Date") for an indefinite period of time (the "Term"). Each party may terminate this Agreement from twelve months after the Commencement Date, by written notice to the other party with due observance of a notice period of 30 days.

11.2               Each party may terminate this Agreement (and close the Experiences and/or Events on the Platform) or suspend this Agreement in respect of the other party, with immediate effect and without a notice of default being required in case of:

11.2.1          a material breach by the other party of any term of this Agreement (e.g. delay of payment, insolvency, the provision of wrong information or receipt of a significant number of End User complaints); or

11.2.2          (filing or submission of request for) bankruptcy or suspension of payment (or similar action or event) in respect of the other party.

11.3               Any notice or communication by Switch of "closure" ("close", "closed") of the Experiences and/or Events on the Platform (or similar wording) shall mean termination of the Agreement. After termination, suspension or closure, the Service Provider shall honour outstanding bookings for End Users and shall pay all Commission (plus costs and expenses, if applicable) due on those bookings in accordance with the terms and subject to the conditions of this Agreement.

11.4               The following events shall, in any event, be regarded as a material breach and entitle Switch to immediately terminate (close) or suspend the Agreement (without a notice of default:

11.4.1          you fail to make any payment due under this Agreement on or before the due date;

11.4.2          you post incorrect or misleading Information on the Platform;

11.4.3          you fail to maintain Information on the Platform resulting in over-bookings of Experiences and/or Events;

11.4.4          you fail to accept a booking at the price shown on the Platform at the time the booking was made by an End User;

11.4.5          you overcharge one or more End Users;

11.4.6          Switch receives one or more legitimate and serious complaint(s) from one or more End Users who made bookings with you;

11.4.7          misuse of the End User review process by any behaviour that results in a review appearing on the Platform that is not an honest expression of a real End User’s attendance or use of an Experience, Event and/or Product;

11.4.8          you market and/or sell to End Users, pursuant to this Agreement, illegal services/other items which are prohibited or restricted by applicable laws, including, without limitation, items the sale of which is prohibited or regulated by applicable laws;

11.4.9          inappropriate, unlawful or unprofessional behaviour towards End Users or Switch staff;

11.4.10       any (alleged) safety, privacy or health issues or problems concerning you, your amenities or your Products (you shall, at your own cost and upon first request of Switch, deliver the relevant permits, licenses, accreditations, or such statements issued by an independent expert evidencing and supporting your compliance with applicable (privacy, safety and health) laws and legislation);

11.5               In the event of termination of this Agreement, all the rights and obligations of the parties shall forthwith cease, except for those provisions with expressly or by implication are intended to continue without limit in time. Termination of this Agreement shall not affect any rights, liabilities or remedies arising under this Agreement prior to such termination.

12.                 FORCE MAJEURE

12.1               No party shall in any circumstances be liable to the other party for any loss of any kind whatsoever by reason of any failure or delay in the performance of its obligations hereunder to the extent resulting from a Force Majeure event.

13.                 CONFIDENTIALITY

13.1               The parties understand and agree that in the performance of this Agreement, each party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the "Confidential Information"). Confidential Information includes End User Data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.

13.2               Each party agrees that: 

13.2.1          all Confidential Information shall remain the exclusive property of the disclosing party and the receiving party shall not use any Confidential Information for any purpose except in fulfilling this Agreement;

13.2.2          it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information;

13.2.3          it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement;

13.2.4          it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and

13.2.5          it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other party.

13.3               Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: 

13.3.1          is or becomes part of the public domain through no act or omission on the part of the receiving party; 

13.3.2          was possessed by the receiving party prior to the date of this Agreement; 

13.3.3          is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or 

13.3.4          is required to be disclosed pursuant to law, court order, subpoena or governmental authority. 

13.4               Nothing in this Agreement shall prevent, limit or restrict a party from disclosing this Agreement (including the any technical, operational, performance and financial data (but excluding any End User Data)) in confidence to an affiliated (group) company that is owned and controlled by either party.

13.5               The parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of End User Data and to protect it from unauthorised use or release. Each party agrees to comply with all applicable (data and privacy) laws, rules and regulations of the jurisdiction where such party is incorporated.

14.                 GENERAL

14.1               Variation 

14.1.1          Switch may make changes to the Agreement and will provide you with prior notification for your consideration and written acceptance.

14.1.2          If any future changes to this Agreement are unacceptable to you, you should discontinue using the Platform and immediately destroy the user ID and password referred to in clause ‎2.10. Your continued use of the Platform now or following the notification of any changes to this Agreement will indicate your acceptance of this Agreement and any changes thereto.

14.2               Notices

14.2.1          Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:

(a)                  delivered by email; and

(b)                  sent to:

(i)                   Switch at:

Email: jane.hk@switchand.co

Attention: Jane Tse

(ii)                 You (the “Service Provider), at:

Email: 

Attention:

14.2.2          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.

14.3               Entire Agreement

14.3.1          This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.3.2          Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

14.3.3          Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

14.3.4          Nothing in this clause shall limit or exclude any liability for fraud.

14.4               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 referred to the Civil Courts of Hong Kong for adjudication thereon and the language to be used in the arbitral proceedings shall be English.