“Affiliate” means any entity which directly or indirectly owns or controls, is controlled by, or is under common control with, Donnelley Financial or Client, as the case may be.
“Agreement” means these terms and conditions and any Proposal.
"Control" over an entity, means either the legal or beneficial ownership of more than fifty (50) percent (%) of the issued shares, or holding of more than fifty (50) percent (%) of voting rights in that entity or its holding company, and "controlled by" and "under common control" shall be construed accordingly.
“Client” means the party to which the Proposal is addressed.
‘’Client Personal Data’’ means all personal data (including texts, documents, drawings, diagrams, images or sounds) provided by the Client to Donnelley Financial (whether relating to the Client, its employees or End Users) pursuant to or in connection with this Agreement.
‘’Data Protection Legislation’’ means the PDPO and all other applicable law, regulation and regulatory guidance from time to time, relating to the collection, use, processing and protection of personal data and privacy.
“Data Room” means the service provided by the Client under the Agreement through which End Users may process, store, reference and communicate information, documentation, or files in respect of a specific business transaction or project.
“Donnelley Financial” means Donnelley Financial Solutions Hong Kong Limited a company incorporated in Hong Kong (company number 204458) with its registered office at 20-21/F, Wheelock House, 20 Pedder Street, Central, Hong Kong.
“Effective Date” means earlier of (i) the commencement date for the Services as set out in the Proposal; or (ii) the first date on which the Data Room is used by the Client or by an End User (other than for demonstration purposes).
“End User(s)” means those employees, professional advisors, contractors, customers and agents of the Client who have been authorized by the Client to access Data Rooms.
"PDPO" means the Personal Data (Privacy) Ordinance (Cap. 486 of the Laws of Hong Kong).
"Intellectual Property Rights" means patents, rights to inventions, trademarks, rights in get-up and trade dress, service marks, logos, trade names, domain names, rights in confidential information (including know-how and trade secrets), copyright (including future copyright), rights in designs, goodwill and the right to sue for passing off or unfair competition, and all rights, future rights or forms of protection of a similar nature or having equivalent or similar effect to any of them and any other intellectual property rights which may subsist anywhere in the world, whether registered or not, and including all applications for the same, and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights, and all goodwill associated therewith.
"Permitted Use" means the specific business transaction (or set of business transactions) for which a Data Room is created.
"personal data" has the meaning ascribed to it under the Data Protection Legislation.
“Proposal” means Donnelley Financial’s proposal in respect of the Services accepted by the Client whether by written acceptance by the Client, or by the use of the Data Room by the Client or an End User (other than for demonstration purposes).
“Services” means secure online document hosting, exchange, communication and related services (including without limitation Data Rooms) provided by Donnelley Financial to the Client.
2. SERVICES AND LICENCE
Donnelley Financial shall supply the Services to the Client in accordance with this Agreement, to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Subject to the terms of this Agreement and payment of any fees due, Donnelley Financial hereby grants the Client and its End Users a revocable, non-exclusive, non-sublicensable, non-transferable, limited right and licence to use the Services for Client’s or End Users’ business transactions for the duration of this Agreement. The Client shall use (and shall ensure that End Users use) each Data Room only for its Permitted Use and for no other use or purpose. The Client shall not allow any third party to use or access the Services provided to Client hereunder, except End Users authorised by Client to access the Data Room for the Permitted Use.
Donnelley Financial warrants to the Client that it shall use reasonable endeavours to ensure that the Services are provided in a secure environment and without interruption, and that the Services will substantially conform to the descriptions of the features and functionality of the Data Rooms contained in this Agreement, which descriptions, features and functionality may be modified from time to time by Donnelley Financial. Donnelley Financial does not warrant that the Services will meet all of Client’s business requirements, or that the Services will be free of errors, interruption, faults or delays. Client acknowledges and agrees that scheduled downtime may be required for upgrades, backup or maintenance. If End Users are likely to be affected by scheduled downtime, Donnelley Financial shall use all reasonable efforts to provide notification of such scheduled downtime on the site.
Donnelley Financial’s sole liability, and Client’s sole and exclusive remedy, under the foregoing warranties shall be limited to supplying, as soon as practicable, and at Donnelley Financial’s cost and expense, services that Donnelley Financial determines to be necessary to allow the Services to perform in accordance with the applicable specifications, provided however, that written notice of an asserted breach of warranty must be received by Donnelley Financial promptly after Client or its End Users first become aware of such asserted breach, and in any event, no later than thirty (30) calendar days after Client or its End Users first become aware of such asserted breach. The foregoing warranties will not apply to the extent that (i) the Services are used for any purpose other than the Permitted Use, (ii) the cause of a breach of warranty is due to a malfunction in Client’s hardware, software, or communications network through which the Services are accessed, or (iii) the cause of a breach of warranty is due to any other cause outside of Donnelley Financial or its hosting facility’s sole and reasonable control.
Except as expressly provided in this Agreement, all warranties, conditions, representations, indemnities and guarantees with respect to the Services and the accuracy, operation, functionality, qualifications, or capabilities of the deliverables, Services, or resources provided hereunder, whether express or implied, arising by law, custom, prior oral or written statements by either party, or otherwise (including, but not limited to any warranty or implied term of reasonable care and skill, performance within reasonable time, satisfactory quality, merchantability, fitness for particular purpose, title and non- infringement) are hereby overridden, excluded and disclaimed to the extent legally permissible.
4. LIMITATION OF LIABILITY
In the event of any loss, damage or destruction of documents, files or media caused by any act, error, omission, negligence or other cause by Donnelley Financial or any of its Affiliates, agents, vendors or subcontractors, Donnelley Financial's liability shall be limited to the lower of (i) the Client's cost of duplication of such documents or files from backup copies maintained by the Client and the Client's cost of obtaining replacement media and (ii) the amount actually paid by the Client for the Services. Under no circumstances will Donnelley Financial, its Affiliates, employees, agents, or contractors be liable for the cost of recreating information for which no backup copies have been retained by the Client.
Donnelley Financial, its Affiliates, employees, agents and contractors shall have no liability to Client, the Client's Affiliate(s) or End User for any consequential, indirect, special, punitive or incidental damages or lost profits, lost revenue or loss of opportunity, whether foreseeable or unforeseeable, whether based on claims of Client, its Affiliates, employees, agents, contractors or End Users (including, but not limited to, claims for wasted costs, loss of goodwill, use of or reliance on the services, stoppage of other work or impairment of or diminution in value of other assets/transactions), howsoever arising, even if advised of the possibility of such damage. Save where liability cannot be restricted by law, in no event shall the aggregate liability of Donnelley Financial or its Affiliates exceed the amount actually paid by the Client (excluding any tax or duty) for the Services. No action, regardless of form, arising out of or related to the use of the Services pursuant to this Agreement may be brought by Client more than twelve (12) months after the cause of action first arose. Notwithstanding the foregoing, Donnelley Financial does not exclude or limit its liability in respect of claims for death or personal injury caused by Donnelley Financial’s negligence or for fraud.
5. CLIENT REPRESENTATIONS AND UNDERTAKINGS
Client hereby represents and undertakes to Donnelley Financial that:
(i) it has (and will ensure that End Users have) all powers and rights necessary to utilise its Data Rooms and to otherwise perform its obligations under this Agreement;
(ii) any data, media, or other content placed into Client’s Data Rooms does not violate the rights of any third party;
(iii) if any data, media, or other content placed into Client’s Data Rooms is subject to export control or secrecy restrictions of any country, the Client will be solely responsible for complying with all applicable export control or secrecy restrictions, obligations and requirements
(iv) it will comply with any other local, state, federal or foreign laws, rules and/or ordinances applicable to the performance of its obligations under (and its use of the Services pursuant to) this Agreement;
(v) in using the Services it will not (and will ensure that End Users shall not) post, transmit, store, upload or distribute any: a) documents, images or other materials which constitute advertising; or b) material for the sole purpose of promoting to consumers any good or service from any business entity mentioned or described in the Data Room; c) marketing materials; or d) materials which are defamatory, obscene, illegal or which contravene any applicable laws;
(vi) in using the Services it will not (and will ensure that End Users shall not), introduce any software, virus or other material which could interfere with the operation of the Services; and
(vii) it shall retain a hard and electronic copy of any document, image, file or other information provided to Donnelley Financial during the Services so that if any such document, image, file or other information is lost, damaged or destroyed during the Services, the Client will be able to provide a replacement.
Client shall, at its sole cost and expense, release, defend, indemnify and hold harmless Donnelley Financial, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to the Client's breach of this Agreement (including without limitation, any breach of the Client’s representations or undertakings in clause 5) or any claim that any document, image, file, data, media, or other content placed into Client’s Data Rooms violates the intellectual property, privacy or other proprietary rights of any third party or violates any laws, rules and/or ordinances.
Donnelley Financial and Client shall keep as confidential and not disclose to any third party any information concerning each other’s business, Services (including without limitation any software, screen layouts, manuals and process workflows), Data Rooms, clients, investors, fees, software programs, trade secrets, data stored on servers under Donnelley Financial’s control, methods or processes and other confidential or proprietary information, including information a reasonable person would understand to be confidential or proprietary which either learns or becomes aware either directly or indirectly, in writing, orally, or by inspection of tangible objects that pertain to such party's business before, during or after the performance of this Agreement (“Confidential Information”), without the prior written consent of the other party. The terms of the Agreement and pricing of the Services shall be considered Confidential Information.
Each party will use the other party's Confidential Information solely to fulfill its obligations under this Agreement. Neither party will disclose, in whole or in part, the other party's Confidential Information to any person, except to End Users and that party's Affiliates, employees or agents who require access to fulfill the purposes of this Agreement provided persons are made aware of the confidentiality obligations hereunder and provided that each party shall be responsible for the acts and omissions of any third party to whom it discloses Confidential Information as if it were its own acts or omissions. Client, on behalf of itself and its End Users further agrees not to reverse engineer the underlying technology of the Services.
Each party acknowledges that any unauthorised use or disclosure of the Confidential Information may cause irreparable damage to the other party. If an unauthorised use or disclosure occurs, such party will give notice to the other party immediately upon becoming aware of the same and take, at its expense, all steps that are necessary to recover the other party's Confidential Information and to prevent its subsequent unauthorised use or dissemination, including availing itself of actions for seisure and injunctive relief. If such party fails to take these steps in a timely and adequate manner, the other party may take them at such party's expense.
Neither party will have any confidentiality obligation with respect to any portion of the other party’s Confidential Information that: (i) it can prove was known or developed independently of this Agreement; (ii) it lawfully obtains from a third party under no obligation of confidentiality; (iii) becomes available to the public other than as a result of a breach of the Agreement; (iv) the disclosure of which is for the purpose of seeking legal advice; or (v) the disclosure of which is required by law or applicable regulation, or is pursuant to a court order.
8. DATA PROTECTION
(i) For the purposes of this clause 8, "data user", "data processor", "data subject", "personal data" and "processing" have the meanings ascribed to them in Data Protection Legislation.
Data user and data processor
(ii) Both parties will comply with their obligations under the Data Protection Legislation, in the case of Client (or the Client Affiliates, as applicable), as data user and, in the case of Donnelley Financial, as data processor. In particular, Donnelley Financial undertakes to:
(a) abide by, and procure that its employees, representatives, subcontractors and agents abide by, the Data Protection Legislation to the extent applicable to data processor; and
(b) provide reasonable assistance to Client and the Client Affiliates in complying with their respective obligations under Data Protection Legislation in relation to the performance of this Agreement.
(iii) Without limiting the foregoing, Donnelley Financial shall:
(a) act only in accordance with Client's (or the relevant Client Affiliate's) written instructions with regard to the processing of Client Personal Data. If Donnelley Financial is required to process Client Personal Data for any other purpose by applicable law, Donnelley Financial shall inform Client of this legal requirement, to the extent permitted to do so by the applicable law;
(b) ensure appropriate technical and organisational measures are in place to safeguard against any unauthorised or accidental access, processing, erasure, loss or use of the personal data transferred to Donnelley Financial for processing;
(c) as soon as practicable, notify Client in the event that it receives a data access or data correction from a data subject exercising his/her rights under the Data Protection Legislation in respect of Client Personal Data for Client to resolve and to assist the Client promptly with all requests and notices which may be received from data subjects. For the avoidance of doubt, the Client is primarily responsible (as data user) to respond to such data access and data correction request. However, where the Client specifically requests Donnelley Financial to assist (and Donnelley Financial agrees to provide such assistance), the Client shall reimburse all costs (including management time incurred) by Donnelley Financial in response to any such data access or data correction requests.
(d) subject always to clause 8not disclose Client Personal Data to, or appoint a sub-processor which is, a third party, other than with the prior written agreement of Client or as otherwise permitted in the Agreement;
(e) Subject to any legal requirements as regards retention of information / records, Donnelley Financial shall promptly carry out any request from a Client requiring Donnelley Financial to amend, transfer, lock or delete any of Client Personal Data in the possession or control of Donnelley Financial;
(f) on the expiry or termination of this Agreement for any reason, immediately cease to use Client Personal Data and shall arrange for its safe return or destruction as notified by Client in writing at the relevant time;
(g) promptly notify Client upon receiving any notice or communication from any data protection supervisory or government body, including the Office of the Privacy Commissioner for Personal Data (Hong Kong), which relates directly or indirectly to the processing of the personal data under this Agreement, for Client to resolve; and
(h) if any Client Personal Data in the possession or control of Donnelley Financial becomes lost, corrupted, destroyed, altered or rendered unusable for any reason, notify the Client of the circumstances having led to such incident as soon as practicable, as the Client or any data protection supervisory or government body, including the Office of the Privacy Commissioner for Personal Data (Hong Kong), may reasonably require to comply with its security breach obligations under the Data Protection Legislation;
(iv) Without limiting the foregoing, the Client shall;
(a) comply with Data Protection Legislation and ensure that any instructions it issues to Donnelley Financial, including the transfer of Client Personal Data to Donnelley Financial, shall comply with Data Protection Legislation; and
(b) have sole responsibility for the accuracy, quality, and legality of Client Personal Data, and the means by which the Client acquired Client Personal Data and shall establish the legal basis and purpose for collecting, holding, processing and using such Client Personal Data under Data Protection Legislation.
(c) Client warrants that;
1. the disclosure of Client Personal Data to Donnelley Financial is limited to what is necessary in order for Donnelley Financial to perform the Services;
2. such Client Personal Data is accurate and up-to-date at the time that it is provided to Donnelley Financial;
3. it shall provide advance written notice to Donnelley Financial of its intention to transfer Client Personal Data to Donnelley Financial for use in the Services.
(v) Client shall;
(a) collect Client Personal Data in a manner compliant with Data Protection Legislation, including by providing all notices and obtaining all consents as may be requested under Data Protection Legislation in order for Donnelley Financial to lawfully and fairly collect, hold, process and use Client Personal Data in connection with/arising out of the provision of the Services and as otherwise contemplated by the remainder of the Agreement;
(b)ensure compliance with the security measures;
(c) notify Donnelley Financial upon becoming aware that Client Personal Data has become inaccurate or out of date;
(d) indemnify and hold harmless Donnelley Financial against any fines, costs, losses or expenses arising from any breach of Data Protection Legislation caused by an End User.
(vi) In particular, the Client
(a) save in relation to direct marketing, acknowledges and confirms that Donnelley Financial may use all Client Personal Data for the following purposes:
1. purposes set out under the Agreement; and
2. purposes set out in the section "How We Use Your Personal Information" in Donnelley Financial's Privacy Notice (which can be accessed via this link ) (the "DFS Privacy Notice").
(b) save in relation to direct marketing, acknowledges and confirms that Donnelley Financial may, for the purposes set out in clause 8(vi)(a) above, transfer all Client Personal Data to the following transferees, which may be based overseas:
1. the transferees set out under the Agreement; and
2. the transferees set out in the section "How We Share Your Personal Information" in the DFS Privacy Notice.
(c) In respect of direct marketing, the Client acknowledges and confirms that:
1. all personal data of the Client's own staff that the Client provides to Donnelley Financial have been collected by the Client in such staff's official capacities; and
2. Donnelley Financial may use such personal data to approach the staff of the Client (in their official capacity as the Client's staff) to conduct direct marketing in respect of products and services that are targeted at the Client, or for use of the Client.
(d) The Client acknowledges and confirms that it has drawn the following to the attention of all data subjects whose personal data the Client will provide to Donnelley Financial:
1. The right of such data subjects to request access and correction of their personal data as set out under the section "Your Rights and Choices" of the DFS Privacy Notice; and
2. The job title and address of the individual who is to handle any such access and correction requests under the section "How to Contact Us" of the DFS Privacy Notice.
9. INTELLECTUAL PROPERTY RIGHTS
Each party shall retain all right, title, and interest in any copyrights, trade marks, patent rights, and other intellectual property or proprietary rights it has acquired or developed prior to or outside the scope of the Agreement. Title and all ownership rights in the Services and any adaptation thereof, including all related patents, copyrights and other proprietary rights, are and shall at all times remain with Donnelley Financial or its licensors or suppliers. Donnelley Financial or its licensors or suppliers may use and will own any feedback and suggestions for improvement relating to the Services provided by the Client, any Affiliates or any End Users without charge or limitation.
The Client grants to Donnelley Financial for the term of this Agreement, a limited, non-exclusive, worldwide, non-transferable, royalty-free license to reproduce, transmit, perform, copy, display, distribute, create derivative works for the sole purpose of formatting, and otherwise use any Client's Intellectual Property Rights for the sole and limited purpose of delivering the Services to the Client per the terms of this Agreement.
Neither Client nor its End Users shall:
(i) attempt to decompile, reverse-engineer or disassemble (except as permitted by law), duplicate, modify or distribute any element of the Services;
(ii) sell, resell, distribute, host, lease, rent, license, or sublicense the Services or any portion thereof;
(iii) allow access to, provide, divulge, or make available the Services to anyone other than the End Users;
(iv) write or develop any derivative works based upon the Services;
(v) copy any materials that Donnelley Financial or any of its Affiliates provides or posts in connection with the Services; and
(vi) use the Services in a manner not authorized under this Agreement, or in violation of applicable law.
Client agrees that all goodwill attaching to and represented by Donnelley Financial’s trade marks or service marks will inure solely to the benefit of Donnelley Financial and that Client will not at any time acquire any rights in Donnelley Financial’s trade marks or service marks. Client shall not take any action that jeopardizes Donnelley Financial's rights in any of its Intellectual Property Rights. Client may not obscure, alter, add, or remove any copyright, patent, trade mark, service mark, or proprietary rights notices on any Donnelley Financial materials.
10. TERM AND TERMINATION
This Agreement shall have an initial term commencing on the Effective Date and continuing for the period as set out in the Proposal during which period neither party may terminate this Agreement save as set out below. Unless otherwise stated in the Proposal, following the initial term this Agreement shall continue unless and until terminated by either party on giving to the other party no less than one month’s notice of termination (Notice Period).
Following the expiry of the initial term and up until the expiry of the Notice Period – the Client shall pay Donnelley Financial for the Services at the applicable extension pricing rate detailed in the Proposal.
Either party may terminate this Agreement upon written notice in the event the other party breaches any of the material terms of this Agreement and (if such breach is curable) fails to cure such breach within thirty (30) calendar days of the breaching party’s receipt of the non-breaching party's request to cure such breach.
Notwithstanding the above, Donnelley Financial may, without any prior notice, immediately deny the Client or any of its End Users access to the Services (including the ability to open Data Rooms) if (i) the Client or its End Users use the Services beyond the scope of the Permitted Use or in violation of any law or regulation; (ii) the Client or any such End User’s use of the Services may, in Donnelley Financial’s reasonable opinion, unreasonably impair the ability of other End Users to access or use the Services; or (iii) Client has failed to settle any overdue invoice 30 days after written or email demand to pay was sent by Donnelley Financial.
Upon termination or expiration of this Agreement, unless a winding-up period is specifically agreed in writing by the parties, Client will immediately cease to utilise the Services and return all materials to Donnelley Financial relating to or constituting part of the Services, and Donnelley Financial may immediately terminate Client's and End Users' access to its Data Rooms and remove Client's Data Rooms from the Services at anytime following such termination.
Neither party may assign this Agreement without the other party's prior written approval, such consent not to be unreasonably withheld, provided that Donnelley Financial may in its absolute discretion assign its right to payments hereunder to an Affiliate without such consent, and may subcontract performance of its obligations to its Affiliates.
Donnelley Financial reserves the right at any time to modify the features, and functionality of the Services as necessary to ensure the proper performance of the Services.
If any provision of this Agreement is held to be unenforceable, such unenforceability will not affect the validity of the other provisions of this Agreement.
14. INDEPENDENT CONTRACTORS
This Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the parties hereto. Neither party shall have the authority or represent itself as having the authority to bind the other party to any agreement or commitment with a third party or otherwise.
15. GOVERNING LAW AND JURISDICTION
This Agreement will be governed and construed in accordance with the laws of Hong Kong. The parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of Hong Kong.
16. FORCE MAJEURE
Donnelley Financial does not and cannot control the flow of data to or from the Services, as such flow depends in large part on the performance of internet services and software provided or controlled by third parties and on the public internet infrastructure, as well as other events beyond the control of Donnelley Financial. At times, action or inaction of parties other than Donnelley Financial or events beyond Donnelley Financial’s reasonable control (“Force Majeure Events”) can impair or disrupt Donnelley Financial’s ability to provide the Services or the Client's or its End Users’ ability to access the Services. Notwithstanding anything to the contrary in this Agreement, Donnelley Financial disclaims, and the Client shall not hold Donnelley Financial responsible for, any and all liability resulting from or related to such Force Majeure Events.
Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement, (including the provisions of clauses 1, 7-9, 12, 14, 16, 18-20 shall survive the termination or expiration of this Agreement.
Notwithstanding the above, the termination or expiration of the Agreement 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 Agreement which existed at or before the date of termination or expiry.
18. THIRD PARTY RIGHTS
No rights under this Agreement shall be enforceable pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong) by any person not party to it, except for those clauses that expressly confer rights and benefits on to Donnelley Financial’s Affiliates, directors, officers, agents, employees and shareholders which may be enforced by such persons. Notwithstanding any term in this Agreement, the consent of any person who is not a party to the Agreement is not required to rescind or vary the Agreement at any time.
Following completion of the Permitted Use, Donnelley Financial is hereby authorized, and granted a revocable, royalty-free, non-transferable and non-exclusive licence, by the Client to: (i) include the Client's name in Donnelley Financial 's current customer lists on its website and other promotional materials, which are shown to prospective users; (ii) display Client’s logo in a rotating display of other companies’ logos on the Venue website; and (iii) use, reproduce and display testimonials, white papers and other materials approved by Client on Donnelley Financial's website and in other promotional materials.
20. CHARGES AND PAYMENT OF INVOICES
The charges for the Services shall be calculated in accordance with, or as set out in, the Proposal.
Donnelley Financial shall be entitled to invoice the Client on or at any time after completion of the Services or [monthly in arrears].
Save as may be set out in the Proposal, Client will pay Donnelley Financial's invoices within 30 days of the date of such invoice in full and without any deduction or set-off or withholding whether on account of any taxes or other levies or otherwise, save for deductions or withholdings required by applicable laws. In the event that Client is required by applicable law to deduct or withhold amounts from any payments to Donnelley Financial, the fees shall be increased by an amount (and the Client shall increase the amounts paid to Donnelley Financial) such that net amount received by Donnelley Financial is the same as it would have been had there been no deduction or withholding made.
21. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the parties with respect to the Services and supersedes all other agreements with respect to the subject matter hereof.
Version: June 2020