BENCHMARK CORPORATE CONSULTING LIMITED(“BENCHMARK”), a company registered in Hong Kong as one of the services that BENCHMARK provides along with the BENCHMARK website (the “Website”), BENCHMARK’s email notifications and any information or content appearing therein to facilitate the provision of any of its corporate services or cloud-based solutions (“BENCHMARK Services”). Use of this Website, email notifications or any of BENCHMARK’s Services are subject to the following terms and conditions of service (the “Terms”).

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BY ACCESSING OR USING ANY BENCHMARK SERVICES YOU ARE DEEMED TO HAVE AGREED TO BE BOUND BY THESE TERMS, OUR PRIVACY POLICY AND PAYMENT TERMS. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND ANY ACCOMPANYING RISKS AND OBLIGATIONS.

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1. Definitions

1.1 “You” includes:

1. any company identified during registration and any company which will or has been incorporated or which is now registered and will use BENCHMARK’s corporate secretarial service (a “BENCHMARK Company”);

2. any individual linked to a BENCHMARK Company whether as shareholder, director, officer, employee or customer of the Dashboard on behalf of a BENCHMARK Company;

3. any individual or company which has registered for the use of any BENCHMARK Services.

1.2 “Customers” means any person using the BENCHMARK Services whether on his or her own behalf or on behalf of a third party. All customers represent and warrant to have the legal right and full power and authority to execute, deliver and exercise the rights and perform the obligations under these Terms on behalf of the third party.

    2.Services

2.1 BENCHMARK provides a range of corporate services and corporate solutions using cloud-based software to incorporate and manage the corporate governance and general compliance undertakings for companies in Hong Kong.

2.2 BENCHMARK is not a law firm and as such does not provide legal advice or any legal services.

2.3 Customers may engage BENCHMARK to provide certain business services. These services may include any of the following:

a)  company incorporation (if applicable);

b)  provision of a registered office address and scanning of mail;

c)  maintenance of statutory registers on the Dashboard in accordance with applicable legal requirements;

d)  lodgement and payment of regulatory filings with the Companies Registry of Hong Kong;

e)  preparation of corporate decisions and resolutions in connection with the governance of the applicable BENCHMARK Company;

f)  filing of changes relating to a BENCHMARK Company, including but not limited to change of officers, shareholders, share capital, registered office, particulars of officers or shareholders, or the Articles of Association;

h)  provision of accounting services, including, but not limited to:

i.  preparation of management report, including Profit and Loss Statement, Balance Sheet,Trial Balance and General Ledger;

ii. maintenance of general ledger, accounts payable ledger, accounts receivable ledger, and fixed assets ledger; and

iii. perform bank and other accounts reconciliation;

i)  provision of payroll services, including, but not limited to:

i.  salary calculation on a monthly basis;

ii. generation of monthly pay slips for employees;

iii. monthly submission to selected Mandatory Provident Fund (MPF) providers; ;

iv.  issuing income summary for personal tax filing;

vi. maintenance of payroll file for each employee; and

j)  provision of tax services, including, but not limited to:

i.  preparation of \tax computation for the Company’s approval; and

ii. preparation of Profit Tax Return forms for Company’s submission.

2.4  By appointing BENCHMARK as the Customer’s company secretarial service provider, BENCHMARK shall carry out, or appoint one of its employees to carry out, the duties of a company secretary in accordance with the laws of Hong Kong.

2.5  BENCHMARK shall only provide company secretarial services as requested by the Customer from time to time orally, in writing or any other manner in which BENCHMARK may accept. The Customer agrees that BENCHMARK has no liability to the Customer for any loss or damage arising out of or in relation to BENCHMARK providing company secretarial services in accordance with Customer’s instructions or these Terms, which shall take precedence.

2.6  All Customers shall indemnify BENCHMARK (and/or any of its affiliates) against any and all actions, judgements, claims, demands, costs, taxes and expenses (including legal and/or professional fees) howsoever incurred by BENCHMARK in the course of and pursuant to its duties and obligations provided by any BENCHMARK services in accordance with your instructions or these Terms.

2.7  BENCHMARK may require that, in order for the performance of BENCHMARK Services , all Customers shall enter into any supplemental agreements or carry out any acts required by BENCHMARK or by law in order for BENCHMARK to provide BENCHMARK Services. BENCHMARK shall not be obliged to provide any BENCHMARK Services if the Customer fails to enter into a supplemental agreement or carry out any acts required by BENCHMARK or by law.

2.8  If BENCHMARK, in its opinion, is obliged to meet any of the Customer’s requirements or legal obligations, the Customer agrees that BENCHMARK is authorised to take any steps that it may in its reasonable discretion deem necessary to comply with such obligations or requirements, which includes taking professional advice or legal advice at the expense of the Customer.

2.9  At the request of BENCHMARK, the Customer shall provide BENCHMARK with all documents and information as required by BENCHMARK in order for BENCHMARK to comply with its internal policies, any applicable law or guidelines issued by any relevant regulatory authority and/or for any other reason that BENCHMARK may consider necessary from time to time.

      3.      Use of Services

3.1  BENCHMARK may at any time suspend or discontinue any BENCHMARK Services or any feature of any BENCHMARK Service.

3.2  BENCHMARK will make every effort to ensure that BENCHMARK Services are available, however, such services may be interrupted to conduct maintenance, repairs, upgrades, or network or equipment failures.

3.3  The operation of BENCHMARK Services may be affected by external events including but not limited to epidemics, strike, blockade, war, acts of terrorism, riot, natural disaster, failure or reduction of power, or any force majeure events.

3.4  BENCHMARK will not be liable for any delay or failure to perform its obligations under these Terms if the delay or failure is due to any such events or causes referred to in paragraph 4.3 above, or any other event beyond BENCHMARK’s reasonable control.

       4.      Confidentiality

4.1  Definition of Confidential Information. In connection with their performance under these Terms, each party may from time to time make certain information available to the other party that is not generally known to the public at the time of its disclosure and is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the terms of any order form(s) entered into by the parties, Customer Content, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Services (including but not limited to any security audit), financial information and fee structures, business processes, methods and models, and technical documentation. Confidential information does not include information that: (a) is or becomes publicly available without breach of these Terms by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.

4.2  Protection of Confidential Information. Without the express prior written permission of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to any third party any Confidential Information of the disclosing party and will use at least the same degree of care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, affiliates, consultants, subcontractors, agents, or advisors (collectively known as “Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under these Terms and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth in these Terms. Either party may disclose these Terms to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use that are no less protective than those set forth herein.

4.3  Unauthorised use of Personal Information. Without the express prior written permission of the individuals involved, any use of Benchmark personnel information including but not limited to the company secretary’s personal information including but not limited to name, identification number, email address and contact number for the registration of any accounts or for any other purposes is prohibited. Benchmark reserves the right to take legal action and also to terminate our services should such a situation arise.

4.4  Equitable Relief. The receiving party acknowledges that the remedy at law for breach of these confidentiality provisions may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of these confidentiality provisions by the receiving party or any of its Representatives and to enforce the terms and provisions of this Clause 6 in addition to any other remedy to which the disclosing party is entitled at law or in equity.

4.5  Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal proceeding or regulatory requirement; provided, however, that in such event the receiving party will, if lawfully permitted to do so. The receiving party will provide only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. If BENCHMARK is compelled by law to access or disclose the Customer’s Confidential Information as part of a civil proceeding to which the Customer is a party, the Customer will reimburse BENCHMARK for the reasonable costs of compiling and providing secure access to such Confidential Information.

        5.       Intellectual Property

5.1  By agreeing to these Terms you agree to only subscribe to the use and access of BENCHMARK services. You acknowledge that you have a limited right to access and use BENCHMARK services and that no ownership rights are transferred to you under these Terms.

5.2  The marks ‘BENCHMARK’ and its logo, are trademarks of BENCHMARK, and nothing in these Terms gives Customer the right or license to use or reproduce those trademarks without BENCHMARK’s prior written approval.

        6.       Payment Terms

6.1  The price, features and options of BENCHMARK Services depend upon the Subscription Plan selected by you.

6.2  The customer shall pay BENCHMARK in advance the fees set out in the Subscription Package as stated on the invoice or written quotation or the Website for the relevant BENCHMARK Services it has ordered (“Fees”). If the customer has purchased a Subscription Package, BENCHMARK will automatically renew the customer’s subscription 30 days before the end of the applicable subscription period. Unless the Customer chooses to cancel its subscription before the end of the applicable subscription period, the Customer authorises BENCHMARK to charge the Customer’s Payment Method (as defined below) for the fees relating to BENCHMARK’s Services for the renewed subscription.

6.3  The Fees shall be paid through a secure payment process by credit card, debit card or bank wire. “Payment Method” means a current, valid, accepted mode of payment, as may be updated from time to time, which is provided by the customer to BENCHMARK.

6.4  In the event that any fees are due for BENCHMARK Services, BENCHMARK shall issue an invoice to Customer for any such BENCHMARK Services provided. The customer shall pay the fees set out in the invoice for such BENCHMARK Services on receipt of the invoice issued by BENCHMARK.

6.5  The customer acknowledges and agrees that completion of the online payment process does not constitute BENCHMARK’s acceptance of a Customer’s offer to purchase BENCHMARK Services. BENCHMARK’s acceptance of Customer’s order shall take place only on commencement of BENCHMARK Services that the Customer ordered from BENCHMARK.

6.6  BENCHMARK reserves the right to decline an order for BENCHMARK Services for any reason and will refund any fees prepaid if an order is declined, provided that no BENCHMARK Services have been used by the customer.

6.7  During the online payment process, the Customer shall be required to enter their payment details, which are disclosed directly to an independent third-party payments processor. The customer authorises BENCHMARK to execute the Payment Method associated with the Customer’s account for payment of any fees due to BENCHMARK.

6.8  All payments are processed by an independent third-party payment processor. BENCHMARK excludes all liability for any loss or damage that might arise from the processing of customer’s payment information, and the terms of service of that independent third-party payment processor shall apply.

6.9  The customer acknowledges and agrees that if, for whatever reason, any payment is reversed or declined, where recurring payments are required, then the customer’s liability to BENCHMARK will automatically be deemed a debt immediately due and payable. Any outstanding payments that a Customer owes BENCHMARK may attract late payment interest until full payment is received.

6.10  All Fees for any BENCHMARK Services are exclusive of VAT, sales tax, withholding tax or any other taxes that may be applicable / levied in connection with BENCHMARK Services, unless otherwise stipulated in an official invoice issued by BENCHMARK.

6.11  If a customer does not pay for the BENCHMARK Services in full and on time, then BENCHMARK reserves the right to either suspend and/or terminate the performance of the services forthwith in whole or in part until full payment is settled, upon which any resumption or re-activation of the BENCHMARK Services shall be determined by BENCHMARK’s sole and absolute discretion.

6.12 Any prepayment of Fees explicitly intended for BENCHMARK Services as set out in Clause 6.2 or otherwise is strictly non-refundable under any circumstances, unless otherwise stated by Benchmark.

           7.        Limitation of Liability

7.1  To the fullest extent permitted by law, BENCHMARK and its affiliates, directors, officers, employees, agents, representatives, partners expressly disclaim and limit their liability in connection with or arising out of the provision of the BENCHMARK Services.

7.2  BENCHMARK Services and the content and documents on Website are provided on an “as is” basis. No assurance, representation or warranty of any kind is made whether express, implied or statutory including but not limited to warranties of title or implied warranties of satisfactory quality, fitness for a particular purpose or non-infringement.

7.3  BENCHMARK will make every effort to provide high quality services, however, it does not make any representation or warranty that:

a)  the information or content provided as part of BENCHMARK Services will be entirely correct and up to date;

b)  the documents generated as part of the services will be accurate, adequate, reliable, free from defect or error or omissions, suitable for a particular purpose or legally sound;

c)  BENCHMARK Services are free from bugs or viruses;

d)  correspondence between a Customer and BENCHMARK will be free from interception, corruption, error, delay or loss;

e)  access to BENCHMARK Services will always be available or uninterrupted, particularly if the unavailability or interruption is caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services;

f)  use of BENCHMARK Services will achieve any particular commercial result and meet your expectations.

7.4  BENCHMARK shall not be liable for any indirect, special, incidental, punitive, exemplary or consequential losses or damages or any loss of profit, business or data arising out of the use of or the inability to use BENCHMARK Services.

7.5  Any liability of BENCHMARK to any customer shall be (i) capped to a total aggregate sum of HKD$10,000 or (ii) limited to the total amount paid by the customer to BENCHMARK for the services provided over a cumulative period of one (1) year, whichever is lower. Notwithstanding the foregoing, BENCHMARK reserves the right, at the customer’s expense, to assume the exclusive defense and control of any matter for which the customer is required to indemnify BENCHMARK, and the customer agrees to cooperate, at his/her sole expense, with BENCHMARK’s defense of such claims. BENCHMARK will use reasonable efforts to notify the customer of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.. 

         8.      Indemnity

8.1  You agree to indemnify and hold BENCHMARK (and/or its affiliates, officers, directors and employees) harmless from and against all liabilities, damages, claims, cists (including legal fees and costs), and expenses in connection with or arising from:

a)  your breach of these Terms,

b)  your use of BENCHMARK Services and/or

c)  any misrepresentation made by you.

8.2  All Customers represent, warrant and undertake that they shall comply with all applicable laws and regulations when using any BENCHMARK Services.

8.3  All Customers shall indemnify BENCHMARK (and/or any of its affiliates officers, directors and employees) against any and all loss, damage, actions, judgements, claims, demands, costs, taxes and expenses (including legal and/or professional fees) howsoever incurred by BENCHMARK arising from a customer’s breach.

8.4 Notwithstanding anything in these Terms and in addition to Clause 10.2, in the event of persistent or impending breach by the customer of these Terms or any applicable laws, as may be reasonably determined according to BENCHMARK’s sole and absolute discretion, BENCHMARK shall be entitled to pursue such legal and administrative recourse as may be necessary, including assuming control of the customer’s account or initiating filings with the relevant authority on the Customer’s behalf, in other to discharge its duties under applicable law and / or to mitigate the effects of such breach or default.

8.5 The foregoing Clause 8.4 shall be in addition to and shall not adversely affect any other rights or remedies available to BENCHMARK under applicable law.

          9.        Termination of BENCHMARK Services

9.1 Save as otherwise provided in these Terms, either party may terminate any BENCHMARK Services by giving at least thirty (30) days’ written notice to the other party. 

9.2 Notwithstanding the foregoing, BENCHMARK reserves the right to immediately terminate the BENCHMARK Services upon written notice to the customer if BENCHMARK reasonably determines, in its sole and absolute discretion, that the customer is in breach of these Terms, any applicable terms of service or any applicable laws which is incapable of remedy. For the avoidance of doubt and with reference to Clause 7.4, if termination occurs pursuant to this Clause 10.2 the customer shall not be entitled to any refund of the Fees.

9.3  BENCHMARK may also immediately terminate any of the BENCHMARK Services upon written notice to the customer for any reason whatsoever, provided that the customer may be given a refund of the Fees.

9.4 If you decide to terminate the Services before the expiry date of the Services, because of clear negligence and/or material default by Benchmark, then Benchmark shall within fifteen (15) business days refund the balance of the current annual services fees on a pro-rata basis in respect of the unexpired period to which the annual services fees relate. No refunds shall be given under any other circumstances.

9.6  Following the expiry of the Post-Termination Period, you acknowledge that your Company information may be deleted or overwritten from the BENCHMARK internal database, subject to the BENCHMARK Privacy Policy and retention requirements under the applicable data protection laws. It is your sole responsibility to maintain the records of the Company after the termination of any BENCHMARK Services.

          10.      Privacy

10.1  By using and/or accessing the BENCHMARK Website or any BENCHMARK Services, you acknowledge that you have read and agree to the BENCHMARK Privacy Policy, available at our Website, which shall be read together with and shall form part of these Terms.

10.2  You consent to the collection, use and/or disclosure or handling of your Customer Personal Data for the purposes set out in the BENCHMARK Privacy Policy.

10.3  By using the BENCHMARK Website and any BENCHMARK Services you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message, information or Customer Personal Data submitted may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

10.4 Subject to the BENCHMARK Privacy Policy, BENCHMARK will maintain certain Customer Personal Data strictly for internal purposes, including but not limited to managing the performance and functionality of the Website, information security, prevention and detection of spam, fraud, and abuse, troubleshooting, and to improve or enhance the BENCHMARK Services by, among other things, to train computational models and algorithms and generating outputs and data sets, and other related machine-learning purposes. For the avoidance of doubt, the foregoing purposes shall not involve the use, processing or exchange of Customer Personal Data externally or through the public domain unless required pursuant to any statutory order or legal obligation.

           11.      Variation of these Terms

11.1  These Terms may be varied from time to time by BENCHMARK.

11.2  In case of a material change to the Terms, BENCHMARK will inform you by notice. If you continue to use BENCHMARK Services you agree to be bound by the then current terms.

           12.      Waiver and Severability

12.1  BENCHMARK’s failure to enforce a provision in these Terms is not a waiver of BENCHMARK’s right to do so later.

12.2  If a provision in these Terms is found to be unenforceable the remaining provisions of these Terms will remain in full effect and an enforceable term will be substituted, reflecting the initial intent.

           13.     Third-party Rights

Only the customer and BENCHMARK shall be entitled to enforce these Terms. Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties hereto, any rights or remedies under or by reason of this Agreement.

          14.     Governing Law

14.1  These Terms shall be governed by, and construed in accordance with, the laws of Hong Kong.

14.2  The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement.

          15.     Dispute Resolution

In the event of any issue or discrepancy (“Dispute”), the Customer agrees to first attempt to resolve such Dispute, howsoever arising, informally by contacting cs@benchmarkconsults.com and reasonably cooperating with BENCHMARK towards resolving such Dispute prior to filing any claim against BENCHMARK in any legal forum.

         16.     By accessing the Website or using the BENCHMARK Services, the Customer unequivocally agrees and reaffirms his/her agreement to these Terms.