BDO FINANCIAL SERVICES LIMITED

Terms & Conditions of BDO Discover

Last modified: Jan 01 2022

1. Introduction

   1. In these terms and conditions (the "terms and conditions") the following words and expressions have the following meanings:
   • "BDOFS" means BDO Financial Services Limited, a company incorporated in Hong Kong with offices at 25th Floor, Wing On Centre, 111 Connaught Road, Central, Hong Kong.
   • "Contract" means the contract between BDOFS and the Customer for the supply of the Services in accordance with these terms and conditions and any additional terms and conditions that are provided in relation to a selected module.
   • "Discover" means our BDO Discover online platform.
   • "Hong Kong" means the Hong Kong Special Administrative Region of the People’s Republic of China.
   • "Loss" means any loss, damages, costs or interest.
   • "Order" means the Customer's order for the Services as set out in the registration and subscription form that is completed and submitted by the Customer.
   • "Services" or "Service" means the services delivered to the Customer through the use of Discover.
   • "staff member" means any director, officer, employee, consultant, representative or agent of BDOFS.
   2. BDOFS is also referred to in these terms and conditions as "us", "we" or "our" which, where appropriate, includes our successor and predecessor firms and companies and our staff members. References to "Customer", "you" or "your" are to the persons or organisations who enter into a Contract with us for the Services.
   3. Words in the singular shall include the plural and references to one gender includes references to the other gender or the neuter in each case, and references to persons shall include bodies of persons whether corporate or unincorporated.
   4. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Scope of Application

   1. These terms and conditions apply to your use of the Discover platform and apply 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.
   2. The specific Services provided by us may be subject to additional terms of the Service module chosen when you place your order (if applicable).

3. Registration, Access and Communications

   1. An Order placed by you to use Discover constitutes an offer to BDOFS for the purchase of the Services in accordance with these terms and conditions. We will then send a message confirming receipt and provide details of the Order. Confirmation of the Order is only to inform you that we have received the request for the Services.
   2. Your offer is deemed accepted only when you have paid the requisite price (according to the specified payment terms, if any) and you are notified by BDOFS that access to Discover has been activated, on which date the Contract shall come into existence.
   3. BDOFS's acceptance or otherwise rejection of an Order for the Services is at its sole discretion and without requirement to provide any reasons therefor. No liability is assumed by BDOFS for any rejection of an Order.
   4. Once access to Discover is granted, you can access the platform and perform any number of valuations and/or analyses according to the provisions and the term of the Contract.
   5. Access to Discover will be by means of the Customer's own access data i.e. user name and password via the internet. It is your obligation to keep the access data confidential and to prevent any misuse by third parties including any unauthorised persons. In addition, it is your obligation to ensure that any registered users of Discover within your organisation also comply with these terms and conditions.
   6. Customer access to and use of the functionalities of Discover is a non-exclusive right and pursuant to and only for the term of the Contract. No additional rights, including any rights to the software application or operating software of Discover, are granted to the Customer.
   7. We will intercept and monitor communications through Discover to ensure compliance with laws, regulations, our internal rules, and to investigate matters brought to our attention. You consent to our intercepting and monitoring electronic communications between you and other users of Discover.
   8. Any e-mail communication including e-mails and contact forms automatically sent to the Customer via Discover will be sent unencrypted.

4. Usage Price and Payment

   1. The usage price, if any, will depend on the Services module chosen by you. By paying the usage price, you have agreed to the price and the terms and conditions herein.
   2. The current usage prices and related terms for the Services are set out at the Discover webpage. We reserve the right to change the prices at any time and we will update the webpage accordingly.
   3. Payment of the usage price may be by major credit cards or such other payment methods as may be specified by us from time to time.
   4. A receipt for your payment will be issued to you by post, fax, e-mail or telephone based on the contact details that that you have provided to us.
   5. If your initial payment authorisation is later revoked, your access to Discover will be terminated. You may contact our service team at BDODiscover@bdo.com.hk if you believe the access termination was an error. No disputed claims may be offset against any payment of the usage price unless ordered by a court of law with legitimate jurisdiction.

5. Termination or Suspension of the Services

   1. BDOFS has the right to terminate the Services or any part thereof for any reason at any time with or without notice.
   2. The Services may be suspended or deactivated from time to time to carry out system checks, maintenance, upgrading, testing and/or repairs.
   3. We may also limit, suspend or modify temporarily or permanently your access to and/or use of any of the Services with or without notice to you for any reason including for any suspected or actual fraudulent, unlawful or improper use of the Services.
   4. Upon termination of the Services, all liabilities owed by you to us, if any, shall become immediately due and payable.
   5. You may terminate your usage of the Services by giving notice to us, in accordance with the required termination notice period of your Contract, in writing by email to BDODiscover@bdo.com.hk or by fax at (852) 2543 1051.
   6. Once the Services have been terminated or the Contract has been revoked by either party, BDOFS will retain any sums paid by the Customer pending a calculation by us of any sums due either way under the Contract. BDOFS will repay the balance, if any, of payments received, within 30 days from the day on which written termination notice was received by BDOFS.
   7. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

6. Customer Responsibilities

   1. You should notify BDOFS of any changes to your contact details as soon as possible.
   2. It is the Customer's responsibility to ensure that they only use Discover in accordance with the Contract. No access to Discover should be granted to any unauthorised parties. If the Customer is aware of any misuse of its access data, it should inform us immediately.
   3. Discover is the proprietary software of BDOFS and neither it nor any parts thereof should be reproduced or sold or licensed or otherwise granted unauthorised access to by the Customer.
   4. All technical requirements for accessing Discover including the hardware or operating system software, security arrangement, internet connection and current browser will be the Customer's responsibility. If in doubt regarding any systems requirements, you should contact us for details.
   5. We will, at our discretion, continue to develop Discover including technical developments of the functionalities and components of the software. As a consequence, you should be prepared for possible adjustments or updates being required of the software and hardware used, including the acceptance of cookies transmitted by our server.

7. Disclaimer and Limitation of Liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

   1. BDOFS makes no representation or warranty as to the accuracy, reliability, usefulness, timeliness, completeness, relevance or otherwise of the data or content obtained by the Customer through its use of Discover. In addition, BDOFS shall not be liable nor accept any liability of any description deriving from the access to or use of, or inability to access or use, the Services and/or Discover. In particular we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with Discover or the Contract for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, and any indirect or consequential loss.
   2. You understand and acknowledge that the electronic transmission of information on the internet or otherwise has inherent risks, including that such communications may be seen by unintended recipients or become lost, delayed, intercepted, corrupted or be otherwise altered, rendered incomplete or fail to be delivered either at all or to the intended recipients. Despite the inherent risks (and particularly the risk of access by unauthorised parties) you authorise us to communicate with you electronically. Accordingly, you agree that we shall have no liability to you for any Loss arising from the use of email or other electronic message as a form of communication.
   3. You understand and agree that any valuation, capital market data, information or analysis derived from Discover is an indicative estimate not suitable when used in isolation for any decision-making purposes. All information or data derived from Discover are for reference only and do not constitute any instructions, recommendations and/or advice provided by BDOFS. The Customer has sole responsibility for the use of such information, data or results. If the analysis of data or valuation is for a specific objective, for example, business planning, litigation support, transaction and impairment tests, please contact us to discuss a bespoke scope of work and fee.
   4. BDOFS does not accept any responsibility or liability in relation to any damage or purported damage arising in connection with the use of or reliance on the data, content or results generated from the use of Discover, nor any content accessed from links to third-party websites.
   5. Data available on Discover is provided by third party vendors and is not checked, verified or endorsed by us as to its completeness or correctness. We do not provide any guarantees, assurances or warranties of any kind, be they express or implied, as regards the validity, accuracy or timeliness of any third party data and disclaim any responsibility or liability related to such data or the use of it.
   6. We cannot warrant that a matching comparable group will be identified for your business in every case within Discover.
   7. BDOFS reserves the right to revise the information, products or services offered on Discover at any time without prior notice.
   8. Any defects or errors in Discover detected by you should be reported to BDOFS.
   9. Where BDOFS is exercising its right to service and maintain the software and/or hardware systems and to carry out data backups, this may result in temporary periods of unavailability of Discover for which you agree expressly that BDOFS does not have any liability.
   10. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations that is caused by any act or event beyond our reasonable control, including acts of God, typhoons, rainstorms, virus outbreak, government restrictions, strikes, wars, network failures or telecommunications failures.
   11. If BDOFS has agreed any liability for damage claims, for example for an event of Loss caused by gross negligence, our total liability to you arising under these terms and conditions, the Contract or otherwise in relation to Discover, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 3 (three) times the Contract price.
   12. Nothing in these terms and conditions or the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.

8. Confidentiality and Data Protection

   1. Confidential information shall include all information BDOFS receives from the Customer in order to process the Contract and which is marked as confidential. Any information provided to BDOFS that is already in the public domain or subsequently in the public domain shall not be deemed confidential.
   2. We confirm that where you give us confidential information we shall at all times keep it confidential, except as required by law, regulation or applicable professional requirements. We also undertake to use the information only within the context and for the purposes of the Contract.
   3. You hereby consent to the use by BDOFS of the information transmitted and/or generated by you via Discover. This includes any disclosure of the information in an anonymised format to other Discover customers in order to perform and provide a benchmark.
   4. All customer-related data will be stored on our storage devices. You agree that such information can be accessed by staff members and/or other advisors of BDOFS who require such information for their work.
   5. To enable us to provide the Services and process your payment for the Services we will process personal data (including sensitive personal data) in compliance with applicable data privacy laws and provide that information with an adequate level of protection. Processing personal data may include making credit and money laundering checks and retaining the results. For further details regarding how BDOFS handles Customer’s personal data, please consult our Personal Information Collection Statement and Privacy Notice (which can be found at www.bdo.com.hk/en-gb/pics-privacy-notice).
   6. As a data subject you or your staff have the right to object to direct mailing and you may withhold (or at any future time withdraw) any consent given by you for this purpose by contacting us at BDODiscover@bdo.com.hk.

9. Intellectual Property

   1. We retain all trademarks, copyright and other intellectual property rights in everything developed by us within Discover and expressly reserve all our rights in this respect.
   2. You are not permitted to download, reproduce, duplicate and/or distribute Discover as a whole or any parts thereof, including any logos, images, graphics, layout and photos, without the express written permission of BDOFS. Framing the website is also expressly prohibited.
   3. For the avoidance of doubt, you understand and acknowledge that data including market information and listed companies’ financial metrics provided by BDOFS's third party vendors that are used to generate the valuation and/or other results in Discover are proprietary to those third parties. Such data are only for your internal reference and you are therefore expressly prohibited from reproducing, republishing and distributing the data to any other party. Towards this end, you warrant that you will take all appropriate steps to ensure that such data is only used internally and would not be sold, dispatched and/or transmitted to any other parties. You also undertake to indemnify and hold BDOFS harmless from any Loss which it may suffer as a result of a breach of this clause 9.3.
   4. In terms of the valuation or other results derived from or generated by Discover, you may download and reproduce in print or electronic format the said results, which you acknowledge are solely for your own evaluation and shall not be sold, dispatched and/or transmitted to any other parties.
   5. The prior written consent of BDOFS is required if the Customer and/or its advisors wish(es) to make reference to Discover or any results derived from it, in whole or in part, in any document or announcement to the public.
   6. If we become aware of any intellectual property rights claims of third parties relating to Discover and the Services we will notify you. Where any such claims are successful or accepted by us, you shall not be obliged to pay the Contract price (or the relevant portion of the Contract price, as the case may be).

10. General

    1. We may assign or transfer our rights and obligations under the Contract to another entity. You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
    2. Each paragraph of these terms and conditions operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
    3. Insofar as special conditions for individual use of Discover deviate from these terms and conditions, this will be communicated to you in writing. The special terms of use shall then apply.
    4. No failure on the part of BDOFS in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of its right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
    5. BDOFS reserves the right to modify these terms and conditions from time to time at its sole discretion due to legal, technical, or other relevant developments and will notify you of any changes.
    6. If these terms and conditions are translated into a language other than English, the English language version shall prevail.
    7. The Contracts (Rights of Third Parties) Ordinance shall not apply to the Services and/or the use of Discover. Unless specifically herein provided, no person other than you shall have any rights under your Contract and these terms and conditions, nor shall they be enforceable by any person other than you. If legal relationships and obligations are established with third parties by operation of law, then such third parties shall also be subject to the liability provisions in accordance with clause 7 (Disclaimer and Limitation of Liability) of these terms and conditions.

11. Governing law and jurisdiction

    1. These terms and conditions and the related Contract shall be governed by and interpreted in accordance with Hong Kong law. The courts of Hong Kong shall have exclusive jurisdiction to settle any dispute which may arise in connection with your contractual relationship with us and/or the Services to which they relate.
    2. Notwithstanding the above, we have the right to take legal action in the courts of any appropriate jurisdiction to recover any fees owing to us by you and/or any breaches by you of these terms and conditions.