Terms & Conditions

These Terms and Conditions (“Terms and Conditions”) shall apply to the licensing of Software and provision of Services as stated under Table A of the Order by Eastwing Solutions Limited, having its principal place of business at Unit 403, 4/F, Tai Sang Bank Building, 130-132 Des Voeux Road, Central, Hong Kong (“Eastwing Solutions”) to the Customer (“you” or “your”) as named in the Order.

By signing an Order or a Statement of Work (as defined below) or by otherwise using the Software or Services, the Customer agrees to these Terms and Conditions.

You represent that, if you are an individual, you are above the age of majority as per your applicable laws. You represent that you have the necessary power, authority, and capacity to enter into the Agreement. If you are entering into the Agreement on behalf of another entity or person, you represent that you are duly authorized by such other entity or person to act on their behalf and bind them to your acts or omissions herein.

Any terms stated but not defined herein shall have the meaning as ascribed to them under the Order.

1. Binding Effect
   1. The terms of the Agreement will apply to each and every purchase order placed by the Customer and accepted by Eastwing Solutions. In the event that there are any terms or conditions contained in any purchase order sent by the Customer, such terms shall not apply and only the terms of the Agreement will take precedence and be applicable for any Software and Services provided under the Agreement.

2. Ordering of Software and Services
   1. Eastwing Solutions will provide the applicable Software and Services by means of execution of the Order by the Customer and Eastwing Solutions.

3. Acceptance of the Applicable EULA
   1. Customer’s access, use, installation of Software and Services as stated in Table A of the Order is subject to the terms of the Applicable EULA, as amended, and Customer agrees to comply with the same.
   2. Applicable EULA means any of the following terms and conditions of the applicable Software Vendor depending on the Software and Services so selected by Customer and provided to the Customer. The Software Vendor means any of the following vendors stated below.
   3. The applicable Software Vendor may update their EULA and it is your responsibility to regularly check their website for updates. By your act of continuous use of the Software and Services, it shall be deemed that you have accepted their modified terms of EULA.
   4. The applicable Software Vendor may accept or reject your subscription at their own discretion and Eastwing Solutions shall not be liable for any consequences thereof.

Software Vendor	Terms and Conditions
Insightsoftware	https://insightsoftware.com/msa/global/2020-07-30/
Enginatics	https://www.enginatics.com/wp-content/uploads/2018/04/Enginatics-Blitz-Report-End-User-License-Agreement.pdf
More4apps	https://horizon.more4apps.com/ords/f?p=99:17

4. Delivery/Implementation 
   1. As applicable, Eastwing Solutions or the applicable Software Vendor will electronically deliver to Customer the Software listed in Table A of the Order and related installation instructions and documentation shall normally be made available by Eastwing Solutions or the applicable Software Vendor in connection with the Software (“Documentation”) promptly after execution of the Order.
   2. Installation – Except as otherwise set forth in the Agreement or a Statement of Work, all Software products listed on the Order are to be installed by Customer. The installation process is supported through the applicable Software Vendor’s normal support process and/or assistance by Eastwing Solutions.
   3. Training/Implementation Services – If specified in Table A of the Order, Eastwing Solutions will provide Customer with training and/or implementation services as set forth in Table A. Except as otherwise set forth in a Statement of Work, the parties will use commercially reasonable efforts to complete training/ implementation services within 90 days of delivery of the Software and Services set forth in Table A. Customer will reasonably cooperate with Eastwing Solutions and/or the applicable Software Vendor so as to enable Eastwing Solutions to provide the training/implementation services in accordance with the terms herein. 
   4. If Customer does not avail training/implementation services, any training related calls or services will be billed at the current hourly rate, billed in half hour increments. 
   5. Customer shall:
      1. comply with all applicable laws governing use of Software and Services
      2. promptly provide such information, assistance and cooperation as needed by Eastwing Solutions to enable Eastwing Solutions to provide the Software and Services
      3. implement necessary backup and other procedures for the security of its data
      4. train its personnel and authorized users to use the Software and Services in an appropriate way
      5. provide all information pertaining to service requirements and specifications in a complete and accurate manner
   6. All the deliveries herein, Software and Services provided are subject to the applicable Software Vendor providing Eastwing Solutions necessary support and assistance.
   7. Statement of Work shall mean a written document executed between Eastwing Solutions and the Customer which will provide the terms and conditions pursuant to which Eastwing Solutions may provide any consulting or customized services to the Customer. The Statement of Work so executed shall be considered as a part and parcel of the Agreement.
5. Annual Maintenance and Support
   1. Eastwing Solutions’ applicable Software Vendors may offer annual maintenance and support services for the Software (“Support”) as specified in applicable EULA. For perpetual licensing the maintenance will be payable each year on or before the renewal date. For subscription licenses the maintenance is included in the subscription fee. The applicable Software Vendors will provide Customer with Support commencing on the Effective Date for a period as set forth in Notes on the Order (“Maintenance & Support Term”). The Maintenance & Support Term is non- cancellable and Support fees are non-refundable, unless otherwise provided for in the Agreement. Support fees for the first year are specified in Table A of the Order.
   2. The Support fee for additional licenses of the Software will be co-terminus with Customer’s Support Term and Eastwing Solutions will prorate the invoice for the additional Support fees to align with Customer’s anniversary date of Support Term. Annual Support fees for each subsequent year is due in advance on each anniversary date.
   3. Subscription Licenses and Support shall be renewed for successive periods of one (1) year each at the end of the initial term(s) and each subsequent term (“Renewal Term”), unless the Subscription Licenses and/or Support is terminated by either party by written notice of at least sixty (60) days prior to the expiration of the then-current term or Renewal Term. Eastwing Solutions’ applicable Software Vendors reserve the right to modify Subscription Licenses and Support fees annually by providing Customer at least sixty (60) days written notice. Upon the commencement of each new subscription term, you shall pay the then-applicable subscription fees.
   4. All Support provided by Eastwing Solutions shall be on reasonable endeavour basis. If Eastwing Solutions is not able to resolve any issues or troubleshoot any problems, the Customer agrees that it may contact the applicable Software Vendor directly or Eastwing Solutions can provide commercially reasonable assistance to escalate the matter and attempt for early resolution with the applicable Software Vendor.
   5. Any issues in the Software or any warranty claims shall be finally resolved between Customer and applicable Software Vendor.
6. Payment 
   1. The fees in Table A of the Order represent either subscription or perpetual licenses. In the case of subscription licensing that is availed for a short term basis (example for a period of 1 month), the term for the included maintenance & support will be equal to the duration of the first term of subscription, stated in the Notes section in the Order, however, notwithstanding the foregoing the renewal shall always be for a period of one(1) year each. In the case of perpetual licenses, the annual maintenance term is for the first (1^st) year of use.
   2. Perpetual licenses fees are one-time fees.
   3. Unless specified otherwise in writing, Eastwing Solutions will invoice Customer for all fees upon execution of the Order. Customer will pay all invoices within 30 days of the date of invoice. Invoices not paid within 30 days of the due date are subject to an interest charge of the lesser of one- and one-half percent (1.5%) per month or the maximum permitted by law. All prices and payments are in the currency indicated on the Order. 
   4. Reimbursements – If indicated on the Order, Customer agrees to reimburse Eastwing Solutions for reasonable travel expenses (airfare, lodging, meals and ground transportation, and others) actually incurred in connection with providing the Services and only if required and explicitly agreed to by both parties.
   5. Taxes and Other Charges – Unless Customer provides a valid tax exemption certificate, Customer agrees to pay any and all applicable taxes resulting from any transaction hereunder, except for any taxes based on Eastwing Solutions’ net income. All amounts referenced in Table A are due to Eastwing Solutions and are exclusive of all taxes including federal, state and local use, sales, property, ad valorem, excise and similar taxes, as well as any customs duties paid or payable, however designated related to this transaction. Customer will make payment to Eastwing Solutions whenever Eastwing Solutions is required to pay or collect such amount from Customer and unless required by law, Customer shall not deduct from payments to Eastwing Solutions any amounts paid or payable to third parties for customs duties or taxes, however designated. 
   6. All fees paid are non-refundable and all licensing plans are non-cancellable unless otherwise provided herein. For the sake of clarity, any termination by either party will not accrue any right to the Customer to obtain any refund of any fees paid for any unutilised period of license or services for the initial term or any Renewal Term. All payments shall be made by wire transfer to the bank account of Eastwing Solutions unless otherwise stated.
   7. Customer agrees that there may be any fee increases based on the pricing provided by the applicable Software Vendor and Customer agrees to pay all such fee increases.
   8. The list prices, rates, discounts and net prices stated in Table A are only applicable for the specified Order executed by the Customer. For the sake of clarity, any additional licenses, support, services procured by the Customer shall require the Customer to execute a separate Order and only the prices stated in such new Order shall be applicable and all subject to these Terms and Conditions and any applicable EULA.
   9. If any Services are provided by Eastwing Solutions, and any estimate as to number of man days/hours is specified, such man days/hours may vary depending on the tasks accomplished while performing the Services and hence actual charges may vary.
   10. All Services including Support shall be provided during the hours and days as agreed with the Customer. Eastwing Solutions shall accommodate all requests for Support outside of working hours and working days on a commercially reasonable basis. Any Services or Support provided outside of working hours/working days may be subject to additional fees as decided in the sole discretion of Eastwing Solutions and such Services/Support shall only be provided at the Customer’s written request.
7. Ownership and Intellectual Property Rights
   1. By virtue of procuring or using the Software or Services, the Customer does not hold any title to and any intellectual property rights including without limitation copyright, patent rights, trademark, service marks in the Software or Services.
   2. Eastwing Solutions or applicable Software Vendor will hold the title to the Software and Services as applicable.
   3. The Software and Services are only licensed pursuant to the terms of the Order, Terms and Conditions, applicable EULA and any applicable Statement of Work.
   4. Any rights and obligations pertaining to deliverables under any Software shall be governed by the applicable EULA.
   5. Each party grants to the other a non-exclusive, limited, revocable licence to use its intellectual property rights solely to the extent necessary for the other party to perform its obligations herein.
   6. Any and all intellectual property rights that existed prior to the Effective Date or were created outside the scope of the Agreement but were used in relation to the performance of any obligations under the Agreement shall remain the property of that party who created it.
   7. The Customer shall fully comply with the applicable EULA and in specific with any restrictions related to copying, reproducing or distributing the Software or Services.
8. Confidentiality
   1. Both parties agree to hold in strictest confidence, and not to use, except for the benefit of the other party, or to disclose to any person, firm, or corporation without the prior written authorization of the other party, any Confidential Information.
   2. “Confidential Information” means either party’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, software, developments, inventions, processes, formulas, or other business information that is not in public domain.
   3. Confidential Information does not include information that is publicly known at the time of its disclosure to the receiving party, is lawfully received by the receiving party from a third party not bound in a confidential relationship to the disclosing party, was already known by the receiving party before disclosure by the disclosing party, is independently developed or created by the receiving party without the use of the Confidential Information from the disclosing party; or is otherwise required by law or regulation.
   4. The receiving party may disclose Confidential Information following any regulatory order, provided it either gives the disclosing party reasonable notice or obtains written assurance from the applicable regulatory entity that it will afford the Confidential Information the highest level of protection afforded under applicable law.
   5. Upon the termination of this Agreement and on the disclosing party’s written request, the receiving party shall return to the disclosing party promptly any Confidential Information including any materials or copies developed therefrom. The confidentiality obligations under this Section will survive termination of this Agreement for two (2) years.
9. Warranty
   1. YOU AGREE THAT EASTWING SOLUTIONS IS PRIMARILY A RESELLER OF THE SOFTWARE AND SERVICES OF THE APPLICABLE SOFTWARE VENDOR AND AS SUCH EASTWING SOLUTIONS SHALL NOT BE LIABLE FOR ANY ACTS OR OMISSIONS OF THE APPLICABLE SOFTWARE VENDOR IN RELATION TO THE PROVISION OF THE SOFTWARE AND SERVICES TO YOU. EASTWING SOLUTIONS FORWARDS TO YOU SUCH WARRANTIES FOR THE SOFTWARE OR SERVICES AS SOLELY PROVIDED BY THE APPLICABLE SOFTWARE VENDOR AND TO THE EXTENT GRANTED BY SUCH APPLICABLE SOFTWARE VENDOR SUBJECT TO ANY CONDITIONS OR LIMITATION THEREIN. THE CUSTOMER SHALL COMPLY WITH ANY WARRANTY REQUIREMENTS OF THE APPLICABLE SOFTWARE VENDOR INCLUDING NOTIFYING OF ANY DEFECTS IN THE SOFTWARE. TO THE EXTENT, ANY SERVICES ARE SOLELY PROVIDED BY EASTWING SOLUTIONS, EASTWING SOLUTIONS WARRANTS THAT SERVICES WILL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER USING COMMERCIALLY REASONABLE EFFORTS AS PER THE REQUIREMENTS AGREED WITH THE CUSTOMER. EASTWING SOLUTIONS DOES NOT GUARANTEE THAT SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES WILL BE SATISFACTORY OR SUITABLE FOR YOUR PURPOSE. EASTWING SOLUTIONS DOES NOT GUARANTEE THAT THE SOFTWARE WILL BE DELIVERED WITHIN A SPECIFIC TIMELINE. EASTWING SOLUTIONS DOES NOT PROVIDE ANY ADVICE OR RECOMMENDATIONS REGARDING ANY TYPES OF SOFTWARE OR SERVICES TO BE PROCURED OR AS TO ENDORSEMENT OF ANY SOFTWARE VENDOR AND YOU AGREE THAT YOU HAVE MADE YOUR OWN DECISION TO SUBSCRIBE OR USE THE SOFTWARE AND SERVICES BASED ON YOUR OWN ASSESSMENT WITHOUT ANY RELIANCE OR ADVICE FROM EASTWING SOLUTIONS. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EASTWING SOLUTIONS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT OR TITLE, OR WARRANTY RELATING TO THIRD PARTY SERVICES OR PRODUCTS. EASTWING SOLUTIONS DOES NOT GUARANTEE THAT ANY PRICES, RATES OR DISCOUNTS PROVIDED FOR ANY SPECIFIC TRANSACTION (INCLUDING ANY INITIAL DISCOUNTS OR RATES PROVIDED FOR ANY SPECIFIC CUSTOMER) (“PRICING TERMS”) WILL BE EXTENDED FOR ANY FUTURE TRANSACTIONS NOR SUCH PRICING TERMS WILL BE HELD AS BASIS FOR ANY SUBSEQUENT NEGOTIATION OF ANY TRANSACTIONS INCLUDING TRANSACTIONS ACCOUNTED UNDER A STATEMENT OF WORK NOR DOES ANY PRICING TERMS PROVIDE OR ACCRUE ANY RIGHT TO THE CUSTOMER TO AVAIL SUCH PRICING TERMS IN FUTURE FOR ANY TRANSACTIONS.
10. Termination
    1. Either party may terminate the Agreement for convenience by providing the other party sixty (60) days written notice.
    2. Either party may terminate the Agreement if the other party commits a material breach of any provision of the Agreement and fails to remedy the breach within thirty (30) days after receiving notice of the breach.
    3. Eastwing Solutions may terminate the Agreement at any time if the applicable Software Vendor terminates its agreement with Eastwing Solutions or the Applicable EULA.
    4. Notwithstanding the termination of the Agreement, Customer shall be liable to pay all the fees up to the date of termination.
    5. Without limiting its right to terminate or obtain other applicable reliefs, Eastwing Solutions reserves the right to suspend provision of Software or Services if the Customer is found to be in breach of any provisions at any time.
    6. Upon termination, you will not be able to access and use the Software and Services and you shall disable and remove all Software installed on your systems and take any other actions as stated under any applicable EULA and under these Terms and Conditions.
11. Indemnity
    1. You agree to defend, indemnify, and hold Eastwing Solutions, its affiliates, officers, directors, employees, agents, representatives, licensors, applicable Software Vendors, and their permitted successors and assigns, harmless from and against any claims, damages, costs, liabilities, including without limitation, reasonable attorney fees, resulting or arising from your use of the Software or Services or for your breach of any provision under the Agreement.
12. Liability
    1. EASTWING SOLUTIONS SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF PROFITS, WORK STOPPAGE, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT EASTWING SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. EASTWING SOLUTIONS’ TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO EASTWING SOLUTIONS FOR THE PREVIOUS SIX (6) MONTHS PRECEDING THE DATE OF CLAIM.
13. Miscellaneous
    1. These Terms and Conditions shall be governed by the laws of the Hong Kong without regard to any conflict of law principles and the competent Courts of Hong Kong shall have exclusive jurisdiction to decide any dispute hereunder. In case of dispute, parties agree to resolve the matter by good faith before instituting any legal proceedings.
    2. Neither party shall be considered in default in the performance to the extent the performance is prevented or delayed by a force majeure event such as fire, flood, strike, lockdown, epidemic, war, or an act of God or an act of third party. Either party shall provide the other party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure event. In the event of a force majeure that persists for thirty (30) days or more, then either party may terminate this Agreement upon written notice to the other party.
    3. Customer shall not assign the Agreement without the prior written consent of Eastwing Solutions.
    4. Both parties shall comply with all applicable laws including any export laws and privacy laws concerning the provision and use of the Software and Services.
    5. Eastwing Solutions is an independent contractor, and each party agrees that no partnership, joint venture, employment, or agency relationship exists herein.
    6. If any provision herein shall be found invalid or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
    7. All obligations related to intellectual property, indemnity, warranty disclaimers, and limitation of liability or any provision which by their nature should survive shall survive the termination of these Terms and Conditions.
    8. The Agreement along with any applicable Statement of Work constitutes the entire understanding of the parties concerning its subject matter and supersedes all prior and contemporaneous agreements or understandings, express or implied, written, or oral, between the parties.
    9. Customer acknowledges that breach of its obligations may cause irreparable harm to Eastwing Solutions for which Eastwing Solutions may not be fully or adequately compensated by the recovery of monetary damages and hence Eastwing Solutions shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity.
    10. All communications shall be in writing and will be delivered by email or by post at the address set out in the Order or in these Terms and Conditions.
    11. Eastwing Solutions reserves the right to engage any third parties as subcontractors in the provision of all or part of the Services herein.
    12. The rights and remedies of either party shall be cumulative and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other right or remedy.
    13. The rights and remedies of each party may be waived only by a specific written waiver. Delay in exercising or non-exercise of any right or remedy does not constitute a waiver of that right or remedy, or any other right or remedy.
    14. The Agreement binds and benefits the parties and their respective permitted successors and assigns.
14. Changes

Eastwing Solutions reserves the right to modify the Terms and Conditions at any time. If there are any material changes, Eastwing Solutions will promptly notify you by email. To the extent permitted by applicable law, your continued use of the Software or Services constitutes your acceptance of such change(s).

Last updated June 2021

 

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