POYNTA.COM Terms & Conditions (for Property Agent / Owner)
(Ver 1.1, Updated on September 7, 2015)
These terms and conditions constitute a legally binding agreement (“Agreement”) between you (“Client”), who is either a property agent or a property owner, and arigato holdings Limited (“Arigato”). By accessing www.poynta.com (the “Platform”) and using services provided therein, Client agrees to be legally bound by these terms and conditions.
(a) Arigato operates an online platform at www.poynta.com ("Platform") which specializes in the advertising of rental residential property listings for (inter alia) Hong Kong properties to potential customers via the Internet.
(b) Client is either a property agent holding a valid estate agent’s license under the Estate Agents Ordinance in Hong Kong, or a property owner who owns a rental residential property in Hong Kong. Client wishes to advertise on the Platform an information of a rental property on which she/he has an authorization to act as property agent (in case Client is a property agent) or of which she/he has a proper ownership (in case Client is a property owner).
(c) Arigato does not charge at the time Client advertises rental property and there is no limit to the number of listings that can be posted. Arigato only charges when a property tenancy/rental/lease agreement ("lease agreement"), with respect to a property that Client has listed on the Platform, is signed by a renter who searches a rental property through the Platform (a “Renter”) referred to Client by Arigato.
(d) After a lease agreement is signed between a Renter and a property owner (in case Client is a property agent) or Client (in case Client is a property owner), Client shall pay to Arigato a relevant advertisement fees ("Fees") calculated in accordance with Section 4 below. Subject to payment of the Fees by Client :-
(i) Arigato shall pay to a Renter cash or non-cash reward (“Reward”) after a tenancy/rental/lease agreement is signed between the Renter and a property owner (in case Client is a property agent) or Client (in case Client is a property owner); and
(ii) Arigato may pay to a Renter additional cash or non-cash reward (“Additional Reward”) the amount of which will be determined by Client.
(e) Arigato wishes to provide, and Client wishes to receive, certain services using the Platform on the terms set out in this Terms and Conditions.
(f) Arigato will use its reasonable commercial efforts to make available Client’s Listing Materials (as defined below) on the Platform, and to provide certain tools and reporting system (the “Service”). The form, placement, size and location of Client’s Listing Materials on the Platform shall be determined at the sole discretion of Arigato.
(g) Arigato is not acting as property agent when providing the Service, therefore Client shall have sole responsibility to communicate, negotiate and sign tenancy/rental/lease agreements with Renter.
Unless otherwise specified and agreed between Client and Arigato, this agreement will continue for a period of 12 months from the date Client begins using the Service (the “Term”).
From time to time Client shall provide Arigato with property details, listings and other associated content in respect of real estate available for rental (including but not limited to photographs and text) to be uploaded to the Platform ( “Listing Material(s)”). All Listing Materials except for floor and apartment/room numbers of property (“Advertised Material(s)”) shall be displayed and advertised publicly on the Platform.
(a) As between the parties, the Listing Materials shall remain the Client’s exclusive property. Arigato shall not use the Listing Materials for any purpose other than providing the Services.
(b) Client shall only include into the Listing Materials rental properties that are currently available for lease in Hong Kong. Client shall only upload properties to the Platform directly, or through a third party provider who has agreed to comply with our terms and conditions for uploading Listing Materials to the Platform.
(c) Arigato shall have no obligation to review the Listing Materials. Client shall be solely responsible for ensuring that the Listing Materials: (i) comply with all applicable laws; (ii) are accurate and not misleading; (iii) are not fictitious or non-existent, (iv) are not obscene or defamatory or otherwise unlawful; (iv) do not contain or link to any computer viruses or malware; and (v) do not infringe or otherwise violate the copyright or other intellectual property or other rights of any third party.
(d) A Listing Material shall refer only to details of a particular property. Following information on properties shall not be included into the Listing Materials: (i) properties of non-residential use, (ii) properties without any permission or authorization of property owner to advertise on the Platform, (iii) properties under legal dispute, (iv) properties without main facilities required for ordinary residential use, (vi) other properties without fail to satisfy the requirements that Arigato defines.
(e) In case Client is a property agent, Client shall be solely responsible for obtaining any consents and authorization from a property owner necessary for making the Listing Materials uploaded to the Platform or submitted to be used by the Platform, and for making Advertised Materials displayed and advertised on the Platform.
(f) In case Client is a property agent, Client shall have an authorization from property owner to act as agent to lease a rental property included in the Listing Materials. Client agrees to hold Arigato harmless against any claim by any third party arising from any alleged non-compliance with the requirements set forth in Sections 3(c), 3(d) and 3(e) (a “Third Party Claim”).
(g) Within 48 hours after Client is aware that a leasing contract being entered into for a property included in the Listing Materials (in case Client is a property agent), or within 24 hours after Client enters into a leasing contract for a property included in Listing Materials (in case Client is a property owner), Client shall either transfer the property to the archive or remove that property from the Platform.
When requested by Arigato to update the Listing Materials, Client shall check the availability of properties included in the Listing Materials. Client shall transfer the properties that are not available for rental/lease to the archive or remove from the Platform. It is Client’s responsibility to remove all inactive or rented/leased properties advertised on the Platform.
(h) Arigato reserves the right (but shall have no obligation) to withdraw and/or amend any Listing Materials uploaded by Client on the Platform at any time without notice.
Fees and Payment.
(a) In consideration for Arigato providing the Services, Client shall pay Arigato an advertisement fee calculated in accordance with the following formula when a rental property transaction is signed (the “Fees”). All bank charges must be covered by Client, inclusive of the bank charges in Hong Kong so that the Fees shall be paid into Arigato's bank account in [Hong Kong] without any deduction of banking or other charges.
Calculation of Advertisement Fee
When a rental property agreement with respect to a property that is uploaded and advertised on the Platform is signed by a renter referred to Client by Arigato
Base Fee 15% of 1 month rent (excluding management fees) + Additional Reward
When a rental property agreement with respect to a property that is not advertised on the Platform is signed by a renter referred to Client by Arigato
Base Fee 15% of 1 month rent (excluding management fees)
1 month rent shall be calculated by average monthly rent for the term of rental / lease.
(b) When there is no objection from Client 5 working days after Client is notified that Arigato has received an application for a Reward from a Renter with respect to a lease agreement signed by the Renter, Arigato deems that Client has acknowledged that the lease agreement has been signed.
(c) Arigato shall have a sole discretion to determine the amount of cash reward to be paid to a renter.
(d) Arigato shall invoice Client and Client shall pay the Fees monthly in arrears. Arigato shall calculate the balance of the Fees as of the 15th day or the last day of month ("Invoicing Date") and issued an invoice to Client. . Any query in respect of an invoice shall be brought to Arigato’s attention within 5 days of its issue.
(e) Client shall pay to Arigato all invoices by the Due Date. If the Invoicing Date is the 15th day of a month, the Due Date will be last day of that month. If the Invoicing Date is the last day of a month, the Due Date will be the fifteenth (15th) day of the following month.
(f) In the event that Client fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to Arigato, Arigato shall be entitled to:
remove any reference or prevent access to property data submitted by Client to the Platform;
suspend providing the Service to Client;
terminate this Agreement and any other agreements between Client and Arigato;
demand the immediate payment for all Fees outstanding and any other fees with respect to any other agreements between Client and Arigato shall become immediately due and payable notwithstanding the fact that the time for payment has not fallen due;
where payment has not been made within one month of the Due Date charge an administration fee of 7.5% of the invoice due or HK$500.00 whichever is the greater;
charge Client interest (both before and after any judgment) on the amount unpaid at the rate of 5% per month (on a compounded basis) until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest); and
charge Client and demand Client pay, any costs incurred in pursuing non-payment and collecting the overdue amount, including but not limited to collection-agency fees and legal fees, together with any bank charges and administration costs.
(a) Client shall keep ID (e-mail address) and password for accessing the Service securely at all times and shall only disclose to persons authorized to incur charges on behalf of Client. However Client shall be responsible for any use of the Service using Client’s ID and password by any person (whether authorized or otherwise) and, without limitation, Client shall pay any charges incurred as a result of that use;
(b) Client shall responsible for the security and integrity of information contained in the Listing Materials.
(c) Client shall be responsible for ensuring and maintaining security of its systems and the computers that connect to the Platform and use the Service, including implementation of necessary patches and operating system updates and installing relevant antivirus software and checking virus in each computer and mobile devices used to access the Service.
(d) Client shall make reasonable efforts not to access harmful websites, download any content on the harmful websites which may infect Client’s computer equipment, computer programs, data or other proprietary material.
(a) Arigato may temporarily suspend the Platform and/or the Service from time to time in order to perform maintenance, upgrades or for any other reason. Client acknowledges that the Service will be provided over the Internet and that accordingly Arigato cannot and does not warrant that the Platform or Service will be available without interruption, delays or transmission losses or errors.
(b) the Platform and the Service are subject to change, development and discontinuation.
(a) Advertised Materials are in principle not confidential. Floor and apartment/room numbers (“Confidential Information), with which a specific rental property can be identified, included in the Listing Materials are in principle confidential.
(b) Arigato shall not disclose Confidential Information to any third party without Client’s prior consent (except to Arigato’s employees and contractors who need to know such information to provide the Service, or as required under any law, regulation, or order of a government authority or court of competent jurisdiction).
(c) Arigato shall protect the Confidential Information in the same manner as it protects its own sensitive information.
(d) "Confidential Information" shall not include information which: (i) was already known to Arigato without an obligation of confidentiality at the time of receipt from Client, (ii) has come into the public domain without breach of confidence by Arigato, or (iii) was received by Arigato from a third party without restrictions on use in favour of Client. In case of conflict, Section 7(d) will prevail over Section 7(a).
Warranties and Disclaimers.
Arigato represents and warrants to Client that it will provide the Service with reasonable care and skill. To the maximum extent permitted under applicable law Arigato hereby specifically disclaims any and all other warranties in respect of the Platform and/or the Service, (whether express, implied by statute, common law, in the course of performance, course of dealing or usage of trade or otherwise) including, without limitation, any warranties of merchantability or fitness for a particular purpose. Without limiting the foregoing, Arigato does not make any representations or warranties regarding the effectiveness or results of using the Platform or Service.
(a) Nothing in this Agreement shall limit or exclude the liability of any party for: (i) death or personal injury caused by negligence; (ii) fraud; or (iii) any other matter which cannot be so limited or excluded under applicable law.
(b) Subject only to the preceding sentence: (i) in no event shall Arigato or any of its directors, officers, employees, licensors, suppliers or other representatives be liable for any indirect, special or consequential damages, or damages for loss of profits, business interruption, loss of opportunity, loss of sales or rental income, loss of goodwill, computer failure or malfunction or otherwise, arising from or relating to this Agreement, even if expressly advised of the possibility of such damages; and (ii) the aggregate maximum liability of Arigato for any loss or damage howsoever caused (and including, but not limited to loss or damage arising from breach of contract, tort, negligence or violation of third party rights) shall in no circumstances exceed the aggregate total Fees received by Arigato under this Agreement in the twelve (12) months preceding the event giving rise to the liability. The foregoing limitations of liability and exclusions of certain damages shall apply regardless of the failure of essential purpose of any remedies available to either party.
(c) Client shall take all reasonable steps to minimise any loss Client suffers or is likely to suffer and that is the subject of a claim against Arigato under this Agreement. If Client does not take reasonable steps to minimise that loss, then Arigato’s liability to Client for the relevant claim will be reduced accordingly.
(a) Client shall indemnify Arigato and our officers, employees and agents ("those indemnified") against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material uploaded or submitted by you in connection with the Service or any other act or omission by you in connection with your use of the Service.
(b) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
Termination of Service by Client
Client agrees that once the Term commences, Client may not terminate the Agreement for any reason until the expiry of that Term. If Client purports to terminate the Agreement, Client agrees that the Fees or debt payable under the Agreement to be paid within seven (7) days of the purported termination of this Agreement.
Termination or suspension of Service by Arigato
(a) Arigato may terminate this Agreement at any time for any reason provided that Arigato give Client at least seven (7) days' written notice. Should Client continue to use the Service following termination of the Agreement, Client shall remain liable for any and all costs incurred by Client.
(b) Notwithstanding clause 5(a) and without limiting our other rights, Arigato may immediately suspend or temporarily remove details of any Listing Materials uploaded by Client to the Platform or terminate this Agreement if:
Client fails to pay any fees or charges due to Arigato by the due date;
Client breaches any part of this Agreement and the breach is material and not capable of being rectified;
Client breaches any part of this Agreement and fail to rectify that breach within seven (7) days of the breach;
Client breaches any warranties provided or representations made in this Agreement;
Any material supplied by Client (including material uploaded to our web site) is false or misleading;
Client enters into bankruptcy, liquidation, provisional liquidation, administration, receivership, receivership and management, a composition of arrangement with Client's creditors, or appoint a receiver, manager or controller over all or any part of Client’s assets, or are protected from creditors are under any statute, or become or are deemed to become insolvent; or
Client dies, or if Client is in a partnership, is dissolved or an application to dissolve is filed, or if Client is a company, is wound up or an application for winding up is filed.
Effect of termination (by Client or Arigato)
(a) Termination of this Agreement (by Client or by Arigato) does not:
relieve Client of any accrued obligations and liabilities pursuant to this Agreement and Arigato reserves its right to enforce such obligations and liabilities in any event after termination; nor
waive any breach of this Agreement by Client.
(b) In addition to clause 6(a), Client acknowledges that:
Client remains liable for all fees incurred before termination of this Agreement and Client shall pay all outstanding amounts to Arigato within seven (7) days of termination; and
if Client continues to use the Service following termination of this Agreement, Client shall remain liable for any and all fees incurred by Client (these fees may be calculated at our “out of contract” rate which is higher than the usual contractual rates).
Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party, except that Arigato may sub-contract the Service (or any part thereof) and/or assign its rights and delegate its obligations hereunder to any affiliated entity or to any party succeeding substantially all of its business interests.
Neither party shall be liable for any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond its reasonable control, including, but not limited to, natural disasters, industrial disputes of whatever nature, acts of God, public enemies or of government, failure of telecommunications, system malfunctions, fire or other causes.
Any and all notices and other communications to be made under this Agreement shall be in writing, in English and shall be provided by one or more of the following means. Each shall be deemed to have been duly given (a) if delivered personally, when received; (b) if transmitted by fax or email, on the date of transmission with receipt of a transmittal confirmation; (c) if mailed by postage prepaid registered mail or sent by reputable international courier service, on the fourth (4th) day following posting. All such notices and other communications shall be addressed using the address, fax and/or email at the end of the contract as either party may have specified to the other party in writing delivered in accordance with this Section 16.
Arigato reserves the right to amend these terms and conditions from time to time at any time. The amended terms will immediately come into effect once they are posted on our website or delivered by e-mail to Client, and Arigato shall not separately notify each Client. After Arigato has published the amended terms and conditions on the Platform or has delivered the amended terms and conditions by e-mail to Client, Client will be deemed to have accepted the amendments when Client continue to use the Service.
Arigato and Client are independent contractors. This Agreement does not: (a) give either party the power to direct and control the day-to-day activities of the other party, (b) make the parties partners, joint venturers, or co-owners, or (c) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
This Agreement sets forth the entire agreement (and supersedes all prior agreements and understandings) between the parties with respect to the subject matter hereof. Without prejudice to any party’s liability for any fraudulent misrepresentation, there are no other representations, either oral or written, between the parties with respect to the subject matter hereof.
Governing Law and Arbitration.
This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”). Any dispute arising out of or in connection with this Agreement, including a dispute as to the validity or existence of this Agreement, shall be exclusively resolved by arbitration in Hong Kong by a single arbitrator under the auspices of the Hong Kong International Arbitration Centre (“HKIAC”), Such arbitration shall be held in Hong Kong in the English language in accordance with the then effective rules of HKIAC. The award rendered by the arbitrator shall be final and binding upon the parties and judgment on the award may be entered in any court having jurisdiction thereof. This Section 20 shall not be deemed to limit a party’s right to apply for injunctive or other equitable relief to any court of competent jurisdiction.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
If there is any inconsistency or ambiguity between the English version and the Chinese version of this Terms and Conditions, the English version shall prevail.