When you use any website (a "Website") operated by or on behalf of Funky Fish Ltd., (the “Company”) this Terms & Conditions (the "Agreement") shall apply to such use.
1.1. By registering with the Company and/or by using the Company's website and/or by marking the "I have read and agree to the Terms & Conditions" box below (or any other similar wording), you agree to be bound by this Agreement in its entirety and without reservation. As such, this Agreement constitutes a binding legal document between you and the Company and this Agreement shall govern your use of our website at all times.
1.2. The Company reserves the right to suspend, modify, remove or add to the Website in its sole discretion with immediate effect and without notice. The Company shall not be liable for any loss suffered by you resulting from any changes made and you shall have no claims against the Company in such regard.
2. Acceptance of Terms and Conditions
2.1. If you do not agree to any of the provisions of this Agreement you should immediately stop using the Website.
2.2. We reserve the right to amend, modify, update and change any of the terms and conditions of this Agreement from time to time and we will notify of any such amendment, modification or change by publishing the new version of this Agreement on the relevant webpage. Any modified version of this Agreement will take effect upon publication on the Website (unless stated otherwise by us) and your continued use of the Website will be deemed to constitute your acceptance of the changes to this Agreement. It remains your responsibility to ensure that you are aware of the correct and current terms and conditions of this Agreement and we advise you to check for updates on a regular basis.
3. Permitted Participation
No-one under the age of 16 ("Legally of Age"), may use the Website under any circumstances and any person not Legally of Age who uses the Website will be in breach of the terms of this Agreement. The Company reserves the right to request proof of age at any stage, to verify that persons not Legally of Age are not using the Website. The Company may exclude a person from using the Website if proof of age is not provided or if the Company suspects that a person using the Website is not Legally of Age.
4. Intellectual Property
4.1. The brand names relating to the Company andor the Website, including but not limited to Funky Fish and any other trade marks, service marks and/or trade names used by the Company (the "Trade Marks") are the trade marks, service marks and/or trade names of the Company or one of its group companies and these entities reserve all rights to such Trade Marks.
4.2. In addition to the rights in the Trade Marks, the Company or one of its group companies own the rights in all other content, including but not limited to the images, illustrations, designs, icons, pictures, graphics, photographs, animations, videos, music, audio, text and other materials available on the Website (the "Site Content") and the Site Content is protected by copyright and/or other intellectual property rights. You hereby acknowledge that by using the Website you obtain no rights in the Trade Marks or the Site Content and you may only use the same in complete accordance with this Agreement.
4.3. The Website and the Site Content are intended solely for personal, non-commercial use. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Site Content.
5. Your Representations and Undertakings
In consideration of the rights granted to you to use the Website, you represent, warrant, covenant and agree that:
• You are Legally of Age as defined in this Agreement, you are of sound mind and you are capable of taking responsibility for your own actions.
• All details provided by you to the Company either during the registration process or at any time thereafter, including as part of any payment transaction, are true, current, correct and complete and match the name(s) on the credit/debit card(s) or other payment accounts used on the Website. Without derogating from the aforementioned, should you use a credit/debit card or any other form of payment which is not in your private and personal name, we will presume that you have received complete and sufficient consent from the rightful owner and/or the person whom name is used on such payment instrument to make use of such payment instrument for the purposes herein, prior to your engagement with us. We shall not be obligated in any manner to examine such consent and shall bear no responsibility with respect to your representations hereunder. You will promptly notify us of any changes to details previously provided by you to the Company. From time to time you may be requested to provide us with certain documents to verify the details of the credit card used by you on the Website. Depending on the outcome of these verification checks you may or may not be permitted to continue to use the credit card previously used by you. Should any of the information that you provide to us be untrue, inaccurate, misleading or otherwise incomplete, you will be in breach of contract and we reserve the right prevent you from using the Website in addition to any other action that we may choose to take.
• You have verified and determined that your use of the Website does not violate any laws or regulations of any jurisdiction that applies to you.
• You shall use the Website in complete accordance with the terms and conditions of this Agreement, as amended from time to time.
• You are solely responsible for recording, paying and accounting to any relevant governmental, taxation or other authority for any tax or other levy that may be payable in connection with your use of the Website.
• You are solely responsible for any telecommunications networks and internet access services and other consents and permissions required in connection with your use of the Website.
• You shall use the Website only in good faith towards the Company.
• You hereby agree to receive from us communications electronically, and waive any argument or claim you may have in respect of the form of communication (including, but not limited to, any legal requirement re written documents).
6. Payment Transactions and Payment Fraud
6.1. Each user of the Website is fully responsible for paying all monies owed to the Company. You agree that you will not make or attempt to make any charge-backs, and/or deny or reverse any payment that you have made and you will reimburse the Company for any charge-backs, denial or reversal of payments you make and any loss suffered by the Company as a consequence thereof.
6.2. We reserve the right to run credit checks on all users with third party credit agencies, on the basis of the information provided to us on registration.
6.3. We reserve the right to use third party electronic payment processors and/or financial institutions to process payments made by and to you in connection with your use of the Website. To the extent that they do not conflict with the terms of this Agreement, you agree to be bound by the terms and conditions of such third party electronic payment processors and/or financial institutions.
6.4. In the case of suspected or fraudulent payment, including use of stolen credit cards, or any other fraudulent or unlawful activity (including any charge-back or other reversal of a payment), we shall be entitled to inform any relevant authorities or entities (including credit reference agencies) and may employ collection services to recover payments. However, under no circumstances shall the Company be liable for any unauthorized use of credit cards, irrespective of whether or not the credit cards were reported stolen.
7. Obligations of the Company
7.1. The Company has no obligation to check whether users are using the Website in accordance with this Agreement, as updated from time to time.
7.3. The Company does not represent that any of the descriptions of the products sold via the Website are accurate, complete, current or without errors. You hereby waive any claim or argument you may have in case in which the description of the product in the Website is not accurate, complete, current or without errors, and in any case in which the product received by you is not compatible with the description in the Website.
8. NO WARRANTY
8.1. THE WEBSITE, ANY CONTENT WHATSOEVER WITHIN AND THE PRODUCTS SOLD VIA THE WEBSITE ARE PROVIDED "AS IS". THE COMPANY MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS OR ACCURACY OF THE WEBSITE OR THE PRODUCTS SOLD VIA THE WEBSITE. THE ENTIRE RISK AS TO THE USE, QUALITY AND PERFORMANCE OF THE WEBSITE AND THE PRODUCTS SOLD VIA THE WEBSITE LIES WITH YOU.
8.2. THE COMPANY MAKES NO WARRANTY THAT THE WEBSITE AND ANY CONTENT OF THE WEBSITE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, THE SERVER THAT MAKES IT AVAILABLE OR ANY ELECTRONIC COMMUNICATION SENT BY THE COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL CONTENT OR REPRESENTS THE FULL FUNCTIONALITY, ACCURACY, RELIABILITY OF THE MATERIALS OR AS TO RESULTS OR THE ACCURACY OF ANY INFORMATION OBTAINED BY YOU THROUGH THE WEBSITE.
8.3. IN THE EVENT OF SYSTEMS OR COMMUNICATIONS ERRORS, VIRUSES OR OTHER HARMFUL CONTENT RELATING TO THE WEBSITE OR RESULTING IN LOSS OF DATA BY YOU OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT OR SOFTWARE, THE COMPANY SHALL IN NO WAY BE LIABLE TO YOU.
8.4. THE COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OR OMISSIONS MADE BY YOUR INTERNET SERVICE PROVIDER OR OTHER THIRD PARTY WITH WHOM YOU HAVE CONTRACTED TO GAIN ACCESS TO THE SERVER THAT HOSTS THE WEBSITE.
9. Limitations of Liability
9.1. You agree that you are free to choose whether to use the Website and do so at your sole option and discretion.
9.2. The Company shall not be liable to you or any third party in contract, tort, negligence, or otherwise, for any loss or damage whatsoever arising from or in any way connected with your, or any third party's, use of the Website andor purchase of products via the Website, whether direct or indirect, including, without limitation, damage for loss of business, loss of profits, business interruption, loss of business information, or any other pecuniary or consequential loss (even where we have been notified by you of the possibility of such loss or damage).
9.3. The Company shall not be liable in contract, tort, negligence, or otherwise, for any loss or damage whatsoever arising from or in any way connected with your use of any link contained on the Website. The Company is not responsible for the content contained on any internet site linked to from the Website.
9.4. You confirm that the Company shall not be liable to you or any third party for any modification to, suspension of or take down of the Website.
9.5. Nothing in this Agreement will operate so as to exclude any liability of the Company for fraud, death or personal injury that is caused by the Company's negligence.
9.6. You agree that, in the event that the Website fails to operate correctly as a result of, but not limited to, any delay or interruption in operation or transmission, any loss or corruption of data or communication or lines failure, any person's misuse of the Website or its contents or any error or omission in content or any other factors beyond our control, the Company will not be responsible for any loss, that may result.
10. Breach of these terms and conditions
You agree to fully indemnify, defend and hold the Company and its officers, directors and employees harmless immediately on demand from and against all claims, demands liabilities, damages, losses, costs and expenses, including legal fees and any other charges whatsoever, howsoever caused, that may arise as a result:
a. of any breach of this Agreement by you;
b. violation by you of any law or the rights of any third party;
c. use by you of the Website or use by any other person accessing the Website using your user identification, whether or not with your authorization;
Failure to comply with this Agreement may result in legal action being taken against you.
No claims or disputes will be considered more than seven days after the date of the original transaction which allegedly gives rise to such claims or disputes, and all claims or disputes should be raised with the customer service department at firstname.lastname@example.org.
12. Duration and Termination
12.1. This Agreement shall come into force upon your first use of the Website and shall continue in force unless and until terminated in accordance with its terms.
12.2. We may terminate this Agreement immediately without notice:
a. if for any reason we decide to discontinue to provide access to the Website in general or specifically to you;
b. if we believe that you have breached any of the terms of this Agreement;
c. if your use of the Website has been in any way improper or breaches the spirit of this Agreement; or
d. for any other reason we see fit.
12.3. The right to terminate this Agreement given by this clause shall not prejudice any other right or remedy of the Company in respect of the breach concerned (if any) or any other breach.
12.4. Upon the termination of this Agreement for any reason, except as otherwise provided in this Agreement and subject to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.
13.1. If any part of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of this Agreement and shall not affect the validity and enforceability of any of the remaining provisions of this Agreement. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of the parties.
13.2. No waiver by us of any terms of this Agreement shall be construed as a waiver of any preceding or succeeding breach of any terms of this Agreement.
13.3. Unless otherwise expressly stated, nothing in this Agreement shall create or confer any rights or any other benefits to third parties.
13.4. Nothing in this Agreement shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship or any other form of joint enterprise between you and us.
13.5. This Agreement contains the entire agreement between the Company and you relating to your use of the Website and supersedes any and all prior agreement between the Company and you in relation to the same. You confirm that, in agreeing to accept this Agreement, you have not relied on any representation by the Company.
13.6. The Company reserves the right to transfer, assign, sublicense or pledge this Agreement, in whole or in part, in the event of a reorganization of the corporate group in which the Company exists or in the event of a merger, sale of assets or other similar corporate transaction in which the Company may be involved in.
13.7. You may not transfer, assign, sublicense or pledge in any manner whatsoever any of your rights or obligations under this Agreement.
13.8. In this Agreement, "you" or "your" or "user" means any person who uses the Website under this Agreement. Unless otherwise stated, "we", "us" or "our" refers collectively to the Company and its subsidiaries, affiliates, directors, officers, employees, agents and contractors.
14. Governing Law
This Agreement and the relationship between the parties shall be governed by, and interpreted in accordance with, the laws of Hong Kong and you irrevocably submit, for the benefit of the Company, to the exclusive jurisdiction of the courts of Hong Kong to settle any disputes (including claims for set off and counterclaims) which may arise in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by, this Agreement or otherwise arising in connection with this Agreement, the Website and any products sold via the Website.
15. Language Discrepancies
This Agreement has been drafted in the English language. In the event of any discrepancy between the meanings of any translated versions of this Agreement and the English language version, the meaning of the English language version shall prevail.