Clients of FCM in Hong Kong | Terms and Conditions

1 Definitions & Interpretation

1.1 Definitions

(a) Business Day means a day which is not a Saturday, Sunday or public holiday in Hong Kong;

(b) Commencement Date means the date of acceptance of these Terms of Use by You;

(c) Confidential Information means all information disclosed (whether orally, in writing or in any other form) by one party (the “Disclosing Party”) to the other party (the “Recipient”) in connection with these Terms of Use, including but not limited to:
(i) the contents of these Terms of Use and all negotiations and discussions between the parties in relation to it;
(ii) information which the Disclosing Party indicates is or identifies as confidential;
(iii) information which by its very nature, might reasonably be understood to have been disclosed in confidence; or
(iv) information which the Recipient knows or ought to know is confidential,
(v) and all copies, notes and records and all related information based on or arising out of any such information which is not:
(vi) in the public domain (otherwise than as a result of a breach of these Terms of Use); or
(vii) independently developed or known by the Recipient.

(d) Consequential Loss means:
(i) indirect loss;
(ii) loss of revenue;
(iii) loss of reputation;
(iv) loss of profits;
(v) loss of actual or anticipated savings;
(vi) lost opportunities, including opportunities to enter into arrangements with third parties; or
(vii) loss or damage in connection with claims against You by third parties.

(e) Consumption Taxes means any goods and services tax (GST), value added tax (VAT) or sales and use tax required by law to be paid or imposed on the sale or supply of goods, services and rights.

(f) Engagement means the engagement of Us by You to perform the Services on Your behalf, on the terms and conditions set out under these Terms of Use.

(g) Insolvency Event means, in relation to a party, that it becomes insolvent or unable to pay its debts as they fall due or becomes subject to, or itself takes any steps to invoke any law, proceedings, procedure or third-party action preliminary or relating to its insolvency, winding-up, liquidation, administration or receivership (or any analogous proceedings), or to a rescheduling, composition or arrangement in respect of any of its debts;

(h) Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967;

(i) Merchant Fees means the transaction fees charged when payment is made by credit card;

(j) Personnel mean the officers, employees, agents and sub‑contractors of the parties;

(k) Service Fees means the fees payable by You to Us for Services provided by Us under the Engagement;

(l) Services means the services We provide to You under the Engagement;

(m) Taxes any tax imposed by state, federal or other governmental body including Consumption Taxes.

(n) Tax Invoice means an invoice issued by Us showing the amount of tax owing (if applicable);

(o) Term means the period specified in clause 2.

2 Term

2.1 Initial Term

The initial term of the Engagement shall be for a period of thirty six (36) months (“Initial Term”), subject to earlier termination, , in accordance with the provisions hereof. Subject to Article 2.2. The Engagement automatically renews for an additional twelve (12) months “Renewal Term”. The Initial Term of the Engagement and any and all Renewal Terms are herein collectively referred to as the “Term”.

2.2 Renewal of Term

The Engagement automatically renews for an additional twelve (12) months. Either party shall have the right to terminate the Engagement by providing the other party with written notice of its intention to terminate no later than two (2) months prior to the end of the Initial Term for a Renewal Term. Any such Renewal Term shall be on the same terms and conditions as contained herein except:
(i) the Data Privacy Addendum;
(ii) clause 8 (Audit Rights); and
(ii) as may be agreed to by the parties.

3 Services

3.1 Engagement

You engage Us to perform the services listed in the Service Overview (the “Services”) on Your behalf and We agree to perform the Services on Your behalf for the Term, on the terms and conditions set out in these Terms of Use.

3.2 Compliance

(a) The parties must comply with:
(i) these Terms of Use; and
(ii) all laws and regulations, including industrial awards and requirements of any relevant government authorities that may relate to the provision of the Services.

(b) You must also comply with all of Our reasonable directions to assist Us to provide the Services on Your behalf.

3.3 Appointment as Agent

FCM Travel acts as travel agent only. FCM Travel sells various travel related products and services on behalf of numerous transport, accommodation and other wholesale service providers, such as airlines, coach, rail and car rental operators. FCM Travel obligation is to make travel bookings on the Client’s behalf and to arrange relevant contracts between the Client and such travel service providers. FCM Travel has no responsibility for these services nor does it make or give any warranty or representation regarding their standard. All bookings are made subject to the terms and conditions including conditions of carriage and limitations of liability imposed by these travel service providers. The Client’s legal recourse is against the specific travel service provider and not FCM Travel. If for any reason, any travel service provider is unable to provide the services for which the Client has contracted, its remedy lies against such travel service provider and not FCM Travel.

4.1 Service Fees

You agree to pay Us the Service Fees according to the Fee Schedule. We may review the Service Fees payable under this Engagement annually or where the value of all Service Fees payable by You is 25% above or below the estimated spend set out in the Fee Schedule. Where applicable, You also agree to pay Merchant Fees.

4.2 Invoicing

We will submit to You a valid, properly issued Tax Invoice in respect of the Services.

4.3 Payment

(a) Where payment is not made via credit card you must pay Us the Service Fees within 14 days from the receipt of the Statement of Accounts which shall be provided every 14 days.

(b) Notwithstanding any other clause in these Terms of Use, if You have a bona fide dispute about an amount in an invoice, You must notify Us of the disputed amount and the dispute will be resolved in accordance with clause 13. Notification of a dispute does not affect Your obligation under paragraph (a) above until and unless otherwise agreed or determined by the parties or otherwise by a court of competent jurisdiction. For the avoidance of doubt, You must pay the undisputed portion of any disputed invoice.

(c) We may in Our sole discretion charge You 3% per month (36% per annum) on any unpaid invoices due and payable by You within 15 days from the dates detailed in Clause 4.3(a) above.

4.4 Tax

(a) All sums payable under these Terms of Use, unless otherwise stated, shall be exclusive of Consumption Taxes which shall be added if appropriate at the rate prevailing at the relevant tax point.

(b) If Consumption Tax is payable on any supply made under, by reference to or in connection with these Terms of Use, the party providing the consideration for that supply must also pay any Consumption Taxes which may be applicable. Each party will use its reasonable efforts to do everything required by the relevant legislation to enable or assist the other party to claim or verify any tax credit, set off, rebate or refund in respect of the Consumption Tax paid or payable in connection with the supplies. All amounts payable under these Terms of Use shall be paid free and clear of all deductions and withholdings of any kind, save only as may be required by law and as expressly stated otherwise in these Terms of Use. Should either party be required by law to make a deduction or withholding from any amount payable under this Agreement, the parties shall use commercially reasonable efforts to do all such acts and things and to sign all such documents as will enable them to access the benefits applicable under the relevant double taxation agreement or treaty. In the event there is no applicable double taxation agreement or treaty, or if an applicable double taxation agreement or treaty reduces but does not eliminate such withholding or similar tax, the party required to deduct any withholding taxes, shall pay such withholding or similar tax to the appropriate government authority, and send to the other party the best available evidence of such payment.

(c) Each party will be responsible for and will pay all taxes, levies, duties and interest thereon, imposed on it under applicable tax laws in connection with this Agreement, including taxes based on or measured by its income, profits or gross receipts, franchise, doing business, ad valorem, property, payroll, employment or similar taxes or taxes in lieu thereof.

(d) Each party will reasonably and in good faith cooperate with each other in the determination and administration of each party’s tax collection and remittance responsibilities.

(e) If either party has the right under these Terms of Use to be reimbursed or indemnified by another party for a cost incurred in connection with these Terms of Use, that reimbursement or indemnity excludes any Consumption Tax component of that cost for which an input tax credit may be claimed by the party being reimbursed or indemnified.

5 Intellectual Property

Unless expressly agreed to the contrary, each party:

(a) acknowledges that it does not own any Intellectual Property Rights in material provided by or on behalf of the other party for the purposes of these Terms of Use;

(b) You assign to Us all right, title and interest to all Intellectual Property Rights in the materials produced by Us under these Terms of Use, effective immediately on the creation of any such Intellectual Property Rights except to the extent such Intellectual Property Rights include or incorporate any of Your Intellectual Property Rights;

(c) Neither party may use any of the other party’s trademarks for any purpose without the other party’s prior written consent and subject to any conditions the other party may impose;

(d) You agree that in the course of Us providing the Services on Your behalf, You will not do any act or thing which may infringe any of Our Intellectual Property Rights or any of Our third party suppliers’ Intellectual Property Rights;

(e) We agree that in the course of Us providing the Services to You, We will not do any act or thing which may infringe any of Your Intellectual Property Rights; and

(f) this clause 5 survives the expiry or termination of this Engagement.

6 Confidentiality

During and after termination or expiry of this Agreement, the Recipient must:

(a) keep all of the Disclosing Party’s Confidential Information strictly confidential and not disclose it to any third party without the Disclosing Party’s prior written consent;

(b) not copy or make available the Disclosing Party’s Confidential Information to any person other than the Recipient’s officers or employees who need to know and who have been expressly directed to, and have agreed, to keep that information confidential; and

(c) only use the Disclosing Party’s Confidential Information for the purposes of performing the Recipient’s obligations under these Terms of Use.

These obligations of confidentiality will not apply to information that is or becomes in the public domain (except as a result of the Recipient’s breach of these Terms of Use); that is obtained by the Recipient from a third party without any restriction of non-disclosure; or is required to be disclosed by the Recipient by law or rule or regulation of a governing body.This clause survives the expiry or termination of this Engagement.

7 Personal Data and Privacy

The Parties agree that the terms set forth in the Data Privacy Addendum will apply to any Personal Data disclosed, transferred, shared, processed or otherwise used by either Party during the course of this Engagement.

8 Audit Rights

For the duration of the Engagement, from time to time, You may request Us to provide evidence of an independent assessment, or to complete a written audit questionnaire (not more than once each year) You or a third party on Your behalf, for the purpose of assuring that its operations and controls comply with these Terms of Use. We will promptly respond to such request; however, to avoid doubt, nothing in this clause requires Us to disclose information to You where such disclosure would or may: (i) breach any duty or obligation owed to a third party or at law; or (ii) compromise the security or confidentiality of the systems, solutions or information held and used by Us. For matters pertaining to data security, in lieu of the written audit questionnaire, We may produce to You: (i) a list of all Processors appointed by Us to process Client Personal Data; (ii) a copy of Our most recent PCI DSS Attestation of Compliance, to the extent the Client Personal Data includes any payment cardholder data; and (iii) latest auditor’s opinion about the adequacy of data security controls or a valid industry certification e.g. ISO/IEC 27001, SOC2, etc. for systems provided as part of this service to process Client Personal Data. Any non-public documentation and information disclosed to You in accordance with this paragraph shall be deemed proprietary and confidential information of Ours. You shall not disclose such documentation or information to any third party or use it for any purpose other than evaluating Our compliance with these Terms of Use.

9 Indemnity

(a) Each party (the “Indemnifying Party”) indemnifies the other party and its Personnel (the “Indemnified Parties”) against any liability, loss, damage, costs or expenses incurred or suffered by the Indemnified Parties arising directly from or in connection with:
(i) any breach of these Terms of Use by the Indemnifying Party;
(ii) the cancellation of this Engagement because of a breach by the Indemnifying Party;
(iii) any wilful, unlawful or negligent act or omission of the Indemnifying Party or any of its Personnel;
(iv) any injury to, or death of a natural person and any loss of or damage to, a third party’s real or personal property caused or contributed to by the Indemnifying Party or any of its Personnel;
(v) any loss of or damage to real or personal property of the Indemnified Parties, caused or contributed to by the Indemnifying Party or any of its Personnel;
(vi) any claim, action, demand or proceeding by a third party against the Indemnified Parties caused or contributed to by the Indemnifying Party or any of its Personnel; or
(vii) any claim by a third party against the Indemnified Parties that any materials provided by the Indemnifying Party under these Terms of Use infringes the Intellectual Property Rights of the third party, subject to the Indemnified Parties allowing the Indemnifying Party to direct any defence and settlement of the claim.

(b) The provisions of this clause 9 will remain in force following the expiration or termination of this Engagement.

10 Limitation of Liability and Warranties

10.1 Limitation

(a) Subject to clause 10.2 , each party’s liability for any loss or damage, however caused (including by its negligence), suffered or incurred by the other party in connection with these Terms of Use is limited to the amount of all fees paid or payable by You to Us under these Terms of Use.

(b) The limitation set out in clause 10.1(a) is an aggregate limit for all claims, whenever made.

(c) Any claim made by You against Us for loss or damage however caused, including by the negligence of Us, suffered by You in connection with these Terms of Use must be made within one year of You being entitled to make the claim and any claim not made within one year is absolutely barred.

10.2 Consequential Loss

Neither party shall be liable for any indirect, special, exemplary, punitive or Consequential Loss or damage however caused including by its negligence, suffered or incurred by the other party in connection with these Terms of Use.

10.3 Seriousness or nature

For clarity, and without limiting clauses 10.1 and 10.2, the parties agree that clauses 10.1 and 10.2 are to apply in connection with a breach of these Terms of Use, anticipated breach of these Terms of Use and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.

10.4 Warranties

FCM Travel warrants, represents and undertakes that:

(a) It has, and shall continue to have full capacity and authority to enter into and perform its obligations under these Terms of Use;

(b) It has, and shall continue to hold all necessary approvals, consents, licences and permissions to perform its obligations under these Terms of Use; and

(c) The provision of Services shall not infringe the Intellectual Property Rights of any third parties.

(d) Subject to the above warranties, as far as the law permits, We exclude all warranties, rights and remedies You would otherwise be entitled to at law.

11 Subcontractors

You acknowledge that We may subcontract the provision of Services on Your behalf to third party contractors or licensees (“Subcontractors”) only with the consent of You which will not be unreasonably withheld.

12 Termination

12.1 Early termination by either party

Either party may terminate this Engagement by providing the other party with written notice if:

(a) the other party breaches a material provision of these Terms of Use which is either incapable of being remedied or where such breach is capable of being remedied, the other party fails to remedy that breach within 30 days of receiving notice from the non-breaching party requiring it to do so;

(b) the other party is or becomes subject to an Insolvency Event;

(c) the other party breaches clause 6 of these Terms of Use;

(d) if the parties fail to agree on the level of Services Fees to be charged under this Engagement;

(e) there is any material change in a party’s; direct or indirect beneficial ownership or control; or

(f) a party commits any act or does any thing which brings the other party’s reputation into disrepute and as a consequence, it believes that to continue to associate with such party would be detrimental to its own reputation.

12.2 Effect of early termination

(a) Termination does not affect any rights or obligations of one party to the other party which have accrued before termination.

(b) On expiry or termination of this Engagement, each party (the “first party”) must promptly deliver to the other party or permanently delete or destroy, as the other party directs; all of the other party’s material provided by it or on its behalf to the first party for the purposes of this Engagement; materials provided by the other party under this Engagement; any material embodying the other party’s Confidential Information, and any copies or extracts of such material, in the first party’s possession or control.

12.3 Transition Process

If You require Our assistance to transition Your travel management account from Us to another travel management provider (or to You) prior to or upon the expiry or termination of this Engagement, We will provide those services as specified in an agreed transition plan provided that You pay Our agreed transition fees prior to Our provision of the transition services.

13 Disputes

13.1 Parties to try to resolve

(a) If a dispute arises about these Terms of Use or the operation of these Terms of Use, the parties must first attempt to resolve it between their primary contacts, as appropriate.

(b) If resolution of the dispute cannot be achieved at primary contact level within 14 days, the dispute will then be escalated to the parties’ representatives for resolution.

(c) If a party considers that a dispute has still not been resolved under clause 13.1(b) that party must promptly send a notice to the other party (Dispute Notice) setting out a full description of the dispute.

(d) Once a Dispute Notice has been given under clause 13.1(c) a senior executive of each party (or their nominee or delegate) must attempt to resolve the dispute in good faith, on the basis that the parties wish to retain a long term commercial relationship.

(e) If the dispute is not resolved within 30 days from the date of the Dispute Notice, or any longer time the parties may agree in writing, either party may commence or initiate appropriate legal proceedings.

(f) Neither party may commence nor initiate any court proceedings (except applications for urgent injunctive relief) until the procedure set out in this clause has been followed.

13.2 Contract performance

Each party must continue to perform their obligations under these Terms of Use despite the existence of a dispute or any proceedings under this clause, except if the dispute renders it impossible to do so.

14 Notices

14.1 Requirements

If either party gives or is required to give a notice to the other party under these Terms of Use, it must be:

(a) in writing;

(b) directed to the recipient’s address or as advised from time to time; and

(c) hand delivered, sent by registered post, electronic mail or by facsimile to that address.

14.2 When notice is taken to be received

A notice given in accordance with clause 14.1 is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by registered post, 3 days after the date of posting for local or interstate mail and 7 days after the date of posting for international mail; or

(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice but where that time is after 5.00pm in the place of receipt or on a day that is not a Business Day, the notice will be deemed to have been given at 9.00am on the next Business Day.

15 General

15.1 Anti-Bribery and Corruption

Each party shall comply, and shall ensure that each of its employees, officers, directors, contractors and agents complies with all applicable laws, regulations, codes and sanctions, including but not limited to anti-bribery and corruption, foreign corrupt practices and anti-terrorism laws and specifically the Criminal Code Act 1995 (Australia), the Bribery Act 2010 (United Kingdom) and the Foreign Corrupt Practices Act 1977 (United States of America) the Modern Slavery Act 2015 (United Kingdom) and the Modern Slavery Act 2018 (Australia). Neither party shall engage in any course of conduct that would cause the other party to be in violation of the laws of any jurisdiction, including, without limitation, the laws, regulations, codes and sanctions referred to in this clause. Each party shall ensure that it has in place and maintains policies and procedures adequate to prevent bribery and corruption, foreign corrupt practices and terrorism and to ensure compliance with the applicable laws, regulations, codes and sanctions referred to in this clause. Each party shall, and shall ensure that each of its employees, officers, directors, contractors and agents shall uphold the highest standards of business ethics and conduct, and undertake not to give or receive any advantage that could be perceived as payment or receipt of a bribe, not to make facilitation payments and not to bribe a foreign public official.

15.2 Assignment

Neither party may assign, sub-license or otherwise transfer these Terms of Use or any part of it to any other person without the other party’s prior written consent (such consent not to be unreasonably withheld or delayed).

15.3 Entire agreement

These Terms of Use, including its schedules, constitutes the entire agreement between the parties about its subject matter and in relation to that subject matter, supersedes any prior understanding or agreement between the parties.

15.4 Governing law

These Terms of Use or any dispute arising under or relating to or in connection with this Agreement is governed by the laws of Hong Kong and the parties submit to the exclusive jurisdiction of the courts of Hong Kong.

15.5 Amendments to Agreement

No amendment of these Terms of Use will be of any force or effect unless in writing signed by an authorised representative of each party.

15.6 Waiver

The failure of a party to require performance of any obligation under these Terms of Use is not a waiver of that party’s right:

(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and

(b) at any other time to require performance of that or any other obligation under these Terms of Use.

15.7 Severability

If any provision of these Terms of Use is held invalid, unenforceable or illegal for any reason, that provision will be deleted and the remaining provisions of these Terms of Use will remain in full force.

15.8 Survival

Any obligations in these Terms of Use which by their nature are continuing will survive termination or expiration of this Engagement.

15.9 Force majeure

If a force majeure event occurs the obligations of a party under these Terms of Use will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under these Terms of Use by the force majeure event and a party affected by the force majeure event must notify the other party as soon as practicable of the force majeure event and the extent to which that party is unable to comply with its obligations. If a failure or delay in performance exceeds 60 days, We may immediately terminate this Engagement by written notice to You.

15.10 Further Assurances

Each party must do anything necessary(including executing agreements and documents) to give full effect to these Terms of Use and the transactions contemplated by it.

15.11 Relationship of parties

Neither party may act as or represent itself to be the partner of it. Neither party may bind or purport to bind the other party.

These terms were last updated on 29 November 2022.