1. Acceptance of These Terms
These Terms of Service govern the use of the website operated by Xinhuayuan Co., Limited and the professional services that the company provides. By accessing the website, submitting an enquiry or engaging the company for any service, you agree to be bound by these terms. If you do not agree with them, please do not use the website or engage the company.
Where a signed proposal, statement of work or master services agreement exists between you and Xinhuayuan Co., Limited, that document takes precedence over these terms to the extent of any conflict. These terms fill the gaps and provide the default position where no separate agreement has been signed. The company may update these terms from time to time as described in section twenty two.
2. Definitions
In these terms, the company, we, us and our refer to Xinhuayuan Co., Limited. The client, you and your refer to the person or organisation using the website or engaging the company. A deliverable means any software, document, design, configuration or other output that the company provides under an engagement. An engagement means a specific piece of work agreed between the company and the client, whether recorded in a proposal, a statement of work or a written confirmation. Business day means a day other than a Saturday, Sunday or public holiday in Hong Kong.
3. Eligibility and Authority
Our services are offered to businesses and professional users. By engaging us you confirm that you have the legal authority to enter into a binding agreement, either on your own behalf or on behalf of the organisation you represent. If you are entering an agreement for an organisation, you confirm that you are authorised to bind that organisation to these terms.
We may decline an engagement at our discretion, including where a project falls outside our areas of competence, where we cannot meet the required timeline, or where the engagement would require us to act contrary to law or professional ethics.
4. Our Services
Xinhuayuan Co., Limited provides computer systems design and related professional services. Our services include web platform development, mobile application development, systems integration and APIs, e-commerce builds, legacy modernization, and maintenance and support. The scope of any particular engagement is defined in the relevant proposal or statement of work.
We deliver our services with reasonable skill and care and in accordance with applicable professional standards. We may subcontract part of the work where it is appropriate to do so, and in that case we remain responsible to the client for the quality of the subcontracted work. We will tell you when we intend to use a subcontractor on a material part of an engagement.
5. Proposals, Estimates and Orders
We prepare proposals based on the information available to us at the time. A proposal is an invitation to engage us, not a binding offer, until both sides have confirmed it in writing. An engagement begins when the client accepts a proposal in writing and, where required, pays any agreed deposit.
Estimates of effort, cost and duration are prepared in good faith but depend on the assumptions stated in the proposal. If an assumption proves incorrect, the estimate may change under the change control process in section nine. We will always explain the reason for a change before asking the client to approve it.
6. Fees and Payment
Fees are set out in the applicable proposal or statement of work. Unless agreed otherwise, we invoice in advance for a portion of each stage and on completion of agreed milestones. Invoices are payable within the period stated on the invoice, normally thirty days from the date of issue.
Where an invoice remains unpaid beyond the due date, we may suspend work and charge interest on the outstanding amount at a reasonable rate permitted by law. We will give notice before suspending work and will resume promptly once payment is received. All amounts stated are exclusive of taxes unless the proposal says otherwise.
7. Taxes
The client is responsible for any taxes, duties or levies that apply to the services, other than taxes on our own income. Where the law requires us to collect a tax from the client, we will show it separately on the invoice. Each party is responsible for its own tax compliance.
8. Client Responsibilities
A successful engagement depends on cooperation. The client agrees to provide timely access to the people, systems, data and decisions that the work requires. This includes nominating a single point of contact who can speak for the project, reviewing deliverables within the agreed period, and providing accurate information about the systems and processes that the work touches.
The client also agrees to obtain any consents or permissions needed for us to access third party systems and data, and to ensure that any content or data the client supplies does not infringe the rights of others. Where access is delayed, the timeline adjusts accordingly, and we may need to reschedule resources.
9. Change Control
Changes are a normal part of building software. When either side wants to change the scope, the timeline or the cost of an engagement, we will describe the change, its impact and any adjustment to the plan, and the client will confirm in writing before we proceed. Work carried out before written confirmation is at the risk of the party requesting the change.
We keep a record of approved changes so that both sides can see how the engagement has evolved. This record forms part of the documentation handed over at the end of the engagement.
10. Timelines and Delays
Timelines are estimates unless a proposal expressly states that a date is fixed. We will tell the client promptly if we believe a date is at risk and will propose a recovery plan. Neither party is responsible for a delay caused by the other party or by an event outside reasonable control.
Where the client delays a review, a decision or the provision of access, the timeline moves by at least the length of the delay, and we may need to adjust the schedule of other work to keep the engagement practical.
11. Acceptance and Testing
Where an engagement produces a system or a component, we will provide the client with access to a test environment and a description of what the deliverable is expected to do. The client agrees to test the deliverable within the period stated in the proposal and to report any material defects within that period. A deliverable is accepted when the client confirms acceptance or when the review period passes without a report of material defects.
Defects that prevent the deliverable from meeting the agreed specification are corrected at no additional charge within the agreed warranty period. Requests that go beyond the specification are handled as changes under section nine. We do not treat a preference for a different design as a defect.
12. Intellectual Property
On full payment of the fees for an engagement, the client receives ownership of the custom deliverables created specifically for that engagement, including the source code, the design assets and the documentation, unless the proposal states otherwise. We retain ownership of our pre-existing tools, libraries, methods and know how, and we grant the client a perpetual, worldwide licence to use those elements to the extent they are embedded in the deliverables.
We also retain the right to describe the engagement in general terms, for example as a case study or a portfolio entry, provided that we do not disclose confidential information and that we obtain the client consent where the description would identify the client in a way that could reasonably be objected to. Where the client acquires ownership of the deliverables, we may keep an archival copy for legal and professional records.
13. Third Party Components
Our deliverables may include open source or commercially licensed third party components. Those components remain governed by their own licences, and the client agrees to comply with those licences. We select components with care and disclose the significant licences that apply to a deliverable as part of the handover.
We do not knowingly include a component that would require the client to disclose proprietary source code against the client wishes, without telling the client in advance and obtaining written agreement.
14. Confidentiality
Each party may receive confidential information from the other. Each party agrees to keep that information confidential, to use it only for the purposes of the engagement, and to disclose it only to personnel or advisers who need it and who are bound by equivalent obligations. These obligations do not apply to information that is public through no fault of the receiving party, that the receiving party already held lawfully, or that must be disclosed by law.
Where disclosure is required by law, the party subject to the requirement will, where permitted, give the other party prompt notice so that protective measures can be considered. Confidentiality obligations survive the end of the engagement for a reasonable period.
15. Data Protection
Where we process personal information on behalf of the client, we do so as a processor and only on the documented instructions of the client. We implement appropriate technical and organisational measures to protect that information, we limit access to personnel who need it, and we assist the client in responding to requests from individuals and to security incidents.
The client remains responsible for ensuring that it has a lawful basis to share personal information with us and for providing appropriate notices to the individuals concerned. Our own handling of personal information is described in the Privacy Policy published on this website, which forms part of these terms by reference.
16. Warranties
We warrant that we will perform the services with reasonable skill and care and in a professional manner, and that the deliverables will materially conform to the agreed specification for the warranty period stated in the proposal. If a deliverable does not conform, we will correct it at no additional charge as the client exclusive remedy for the breach of this warranty.
Except as expressly stated, and to the fullest extent permitted by law, we disclaim all other warranties, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose and non-infringement. We do not warrant that a deliverable will be free of every defect or that its operation will be uninterrupted.
17. Limitation of Liability
To the fullest extent permitted by law, neither party is liable for indirect, incidental, special, consequential or punitive damages, nor for lost profits, lost revenue, lost data or business interruption, even if the party was advised of the possibility of such loss. Our total aggregate liability arising out of or relating to an engagement is limited to the total fees paid by the client for that engagement in the twelve months preceding the event giving rise to the claim.
Nothing in these terms limits liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be limited. The limitations in this section apply regardless of the legal theory on which a claim is based.
18. Indemnity
The client agrees to indemnify and hold harmless Xinhuayuan Co., Limited against claims, losses and expenses arising from content, data or materials supplied by the client, from the client use of a deliverable in a manner not contemplated by the engagement, or from the client breach of these terms. We agree to indemnify the client against claims that a deliverable, as provided by us and used as intended, infringes a third party intellectual property right, provided that the client notifies us promptly and allows us to control the defence.
19. Term and Termination
An engagement continues until the work is complete or until it is terminated in accordance with this section. Either party may terminate an engagement for material breach if the breach is not cured within a reasonable period after written notice. Either party may terminate for convenience on written notice, in which case the client pays for work performed and commitments made up to the date of termination.
We may suspend or terminate an engagement immediately if we are required to do so by law, if continuing would require us to act unethically, or if the client becomes insolvent. On termination, we will provide the work products created up to that point and will cooperate in an orderly transition. Sections that by their nature should survive termination, including payment, confidentiality, intellectual property and liability, continue to apply.
20. Force Majeure
Neither party is liable for a failure or delay in performance caused by an event beyond its reasonable control, including natural disasters, war, civil unrest, epidemic, government action, power failure or widespread network outage. The affected party will notify the other promptly and will use reasonable efforts to mitigate the effect. If such an event continues for an extended period, either party may terminate the affected engagement on written notice.
21. Governing Law and Disputes
These terms and any engagement are governed by the laws of the Hong Kong Special Administrative Region. The parties submit to the exclusive jurisdiction of the courts of Hong Kong, subject to any right to seek relief in another jurisdiction where necessary to protect intellectual property or confidential information.
Before starting formal proceedings, the parties agree to attempt in good faith to resolve a dispute through direct discussion between senior representatives. If discussion does not resolve the matter within a reasonable period, either party may proceed to mediation or to court as appropriate.
22. General Provisions
These terms, together with any signed proposal or statement of work, form the entire agreement between the parties and replace any earlier understanding on the same subject. If any provision is found to be invalid or unenforceable, the remaining provisions continue in full force. A failure to enforce a provision is not a waiver of that provision.
The client may not assign an engagement without our written consent. We may assign an engagement to an affiliate or successor provided that the assignment does not reduce the protections available to the client. Notices under these terms must be in writing and sent to the addresses stated in the applicable proposal or to the contact details in section twenty three.
We may update these terms from time to time. The version in force at the start of an engagement governs that engagement. A revised version applies to new engagements and to the continued use of the website after publication. We encourage you to review this page periodically.
23. How to Contact Us
Questions about these terms should be directed to Xinhuayuan Co., Limited, Rm 5, 8/F, Mega Cube, 8 Wang Kwong Rd, Kowloon Bay, Hong Kong (HK). You can reach us by email at hello@xinhuayuan.lat or by telephone at +85269296834. We will respond to questions about these terms within a reasonable period.
Thank you for taking the time to read these terms. We look forward to working with you.