Terms and Condition:
The Terms and Conditions stated therein (collectively, the “Agreement”) constitute a legal agreement between you and Banana Portal Limited (“the Company”, “we”, “our”, “us”) stating the Terms and Conditions that govern your use of any services and properties such as websites or applications (“the Platform”) owned and operated by the Company. In order to use the services and properties of the Company, you must agree to the Terms and Conditions set out below. By using or receiving any services supplied to you by the Platform, and downloading, installing and/or using the Platform, you hereby expressly acknowledge and agree to be bound by the Terms and Conditions set forth in this Agreement. If you do not agree to these Terms and Conditions, do not access or use the Platform. The Company reserves the right to update and/or modify the Terms and Conditions of this Agreement at any time, effective upon posting of this Agreement on the Platform. Additionally, the Company reserves the right to refuse access to and use of the Platform under this Agreement.
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
- THE COMPANY’S ROLE AND RELATIONSHIP WITH USERS
We are an online freelance marketplace that connect the general public with freelancers in a transparent way through website and apps. Users who seek freelancers to help them completing tasks and services are known as “Consumers”(“Consumers”, “Customers”, “Clients” for plural, and “Consumer”, “Customer”, “Client” for singular) and users who list and provide services are known as “Service provider” (“Service provider” for singular and “Service providers” for plurals thereafter).Consumers and Service providers (collectively, “Users”) acknowledge and agree that we are solely a venue and medium for communications and neutral facilitator and are not directly involved, nor is a party to the transactions, agreements, contract or arrangements between Users.
The Company, through the Platform, offers information and a method to obtain services. The Company does not provide the services listed on the Platform and it is up to third-party service consultants to offer the services to Consumers and it is up to the Consumers to accept such services. The service of the Company is to link Consumers with third-party service consultants but does not nor is it intended to provide the services or any act that can be construed in any way as an act of the services.
Where you are a Consumer, you may only access the services using authorized means. You agree that the service consultants are independent contractors and by no means constitute in any form an employment relationship between the service consultants and you.
2.3 Service consultants are Independent Contractors
Where you are a service consultant, you represent and agree that you are an independent contractor providing service to Consumers. Service consultants acknowledge that they will rely on their own experience and professional knowledge or skill in the provision of services to the Consumer and that the Company will not provide them with any instruction, supervision and advice. Service consultants agree to prepare the necessary tools and comply with the Laws of Hong Kong as to the required obligation of an independent contract (including purchase of valid insurance coverage) in order to provide the services lawfully. Service consultants will assume responsibility for their own chance of profit and risk of loss. As independent contractors in the provision of services, the service consultants acknowledge that they will not be entitled to any rights or benefits, as employee or otherwise, under statutory provisions, including but not limited to those under the Employment Ordinance and the Employees Compensation Ordinance such as annual leave, sick leave, contribution to Provident Fund or Mandatory Provident Fund and taxation. There is NO employment relationship formed between the service consultants, the Consumers and/or the Company through the services provided by the service consultants. Service consultants SHALL NOT utilize the Platform to obtain employment and Consumers SHALL NOT regard themselves as an employer of the service consultants.
3. REGISTRATION AND BIDDING PROCEDURES
To access and participate in the Platform, you will need to create a password-protected account (known as “account” thereafter). In order to register and create an account on the Platform, Consumers must agree to the Terms and Conditions and provide any other information required by the Platform for registration, while service consultant must (a) agree to the Terms and Conditions, (b) provide any other information required by the Platform for registration, and (c) be verified through SMS verification.
Consumers may receive bids from different service consultants for different consultations. Consumers are entitled to select the suitable service consultant based on ratings and reviews of the service consultant provided by Consumers of the Platform. When consumers create requests of bidding from service providers, we do not involve in providing consumers with bids from suitable Service provider(s), nor do we guarantee that Service providers will be hired by the Consumers who submitted the requests.
Once hired by consumers, service consultants should undertake to perform the services pursuant to consumers. Consumers are obliged to observe the terms of their contract with service consultants. Service consultants are not entitled to non-performance of their contractual obligations, unless there was a material failure to comply with contractual obligations, including but not limited to the payment refusal from consumers.
In case of disputes and conflicts, the Company reserves the right of final decision on the interpretation of these Terms and Conditions.
- FEES, CHARGES AND TAXES
Consumers are not required to pay for the submission of requests onto the Platform. Please refer to Banana Portal pricing plan for more information on current pricing. Unless otherwise stated, refunds for Banana Portal pricing plan are not permitted. Please refer to our FAQ for more information on refund procedures.
A valid credit card is required for service consultant to pay the fees and any other charges. By inputting the details of a valid credit card onto the Platform, service consultant agree and authorize the Company to automatically charge any fees to such card.
The Company reserves the right to increase or decrease the fees or to institute new fees or charges on users of the Platform, upon reasonable notice provided to users and/or posted on the Platform.
Additionally, the Company reserves the right to penalize users in breach of this Terms and Conditions, e.g. by suspending their accounts, without prejudice to other measures that the Company is entitled to take against users in breach. Such users are liable to be punished with a fine, including but not limited to an account re-activation fee for the re-activation of an account that has been deactivated due to users’ violation of the Terms and Conditions.
- NO GUARANTEES OR ENDORSEMENTS FOR SERVICES PROVIDED BY SERVICE CONSULTANTS
We do not guarantee that service consultants will be punctual, or will attend any of the scheduled appointments, as service consultants are not employees, contractors or agents of the Company, nor are we an agent for the service consultants.
We make no guarantees or representations regarding the skills and/or the outcome or quality of service performed by service consultants. Any reference on the Platform or at the premises of a service consultant to the Company’s verifications indicates only that the service consultant is a registered member of the Platform, and is not an endorsement, certification or guarantee by the Company. Additionally, the Company reserves the right not to issue or to remove without notice to users, the Company’s verification to service consultants if service consultants are in breach of the Agreement, if the verification was issued incorrectly or obtained falsely, or for any other reasons requiring its removal by the Company. Consumers should exercise due diligence and caution when deciding to engage with service consultants.
We do not perform and is not responsible for the performance of services requested by consumers. In terms of the provision of services by service consultants and all other related matters, consumers contract directly with service consultants, and their contractual rights are governed by the contractual terms between them and by applicable laws.
6. RELEASE FROM DAMAGES OR CLAIMS BETWEEN CONSUMERS AND SERVICE CONSULTANTS
Where consumers have disputes with service consultants, the former should address such disputes with the service consultant directly. Users hereby agree to release the Company (and our officers, directors, affiliates, employees and agents) of any damages or claims (including consequential and incidental damages) of every kind or nature, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such dispute.
7. YOUR USE OF THE PLATFORM AND PROHIBITED USES
As a user of the Platform, you agree to comply with the Agreement and all applicable laws and regulations. You acknowledge and agree that the Platform is for your personal use only. You undertake not to misuse or attempt to misuse or circumvent the Platform, or are using or attempting to use the Platform for any unlawful, immoral, inappropriate or non-personal purposes, including but not limited to activities such as hacking, scraping content, infiltrating, fraud, advertising, jamming or spamming. You may not use the Platform to recreate or compete with the Company or to solicit or harass other users, or for any other purpose not contemplated herein. You are prohibited from advertising or soliciting services, not within the ambit of any of the services offered by the Platform at the material time when the advertisement or solicitation was publicized.
All personal information about users are confidential, and you may not collect, harvest or publish any personally identifiable data including but not limited to names or other account information, from the Platform. You acknowledge that a violation of the foregoing could result in significant damages, and you agree that you are liable to the Company for any such damages, and will indemnify the Company in the event of any third party claims against the Company based on or arising from your violation of the foregoing. Additionally, the Company reserves the right, in its sole discretion, to immediately terminate your access without notice and to initiate without notice appropriate legal actions or proceedings to seek appropriate remedies and/or damages, including but not limited to lost revenue, repairs, legal fees, costs and expenses, and to seek injunctions or other equitable remedies, for your misuse or suspected misuse of the Platform.
- INFORMATION PROVIDED TO US
By completing a service request, Consumers promise that all information provided (including but not limited to your contact information, and any Ratings and Reviews of service consultants that you provide) will be accurate, current and truthful to the best of your knowledge. By registering as a service consultant, service consultants are obliged to ensure that the information provided are accurate, current and truthful to the best of their knowledge during the term of his registration. If you provide any information that is untrue, obsolete or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to refuse any current or future use of the Platform (or any portion thereof) by youand remove the untrue, inaccurate, obsolete or incomplete information in any time without further notice. You are responsible for maintaining the security and confidentiality of your account. As such, the Company shall be entitled to assume that any person using the Platform with your log-in email and password is you or your representative, and you are liable for any damages arising out of any unauthorised use of the Platform by persons to whom you intentionally or negligently allow access to your account.
To knowingly input false information, including but not limited to name, phone number, address or e-mail address is a very serious and fraudulent matter that could result in significant costs and damages including invasion of privacy rights, to the company and its service consultants, and its Consumers, as well as the loss of time, effort and expense responding to and pursuing such false information and request, and further, could result in regulatory fines and penalties. Accordingly, the Company reserves all rights to penalize users for providing falsified information on the Platform, and/or to require these Users to pay for the actual, direct, punitive and consequential damages, and any regulatory or judicial fines or penalties that may arise from such intentional, misleading, harmful and fraudulent activity, plus reasonable legal fees, cost and expenses relating thereto, whichever is greater.
9. CONTACT BETWEEN THE COMPANY AND ITS SERVICE CONSULTANTS WITH CONSUMERS
By submitting a service request, users agree that the Company and its service consultants may send you Whatsapp or informational text (SMS) messages as part of the routine business practice of the Company. These text messages shall not be used for marketing purposes. You acknowledge that by opting out of receiving text messages from the Company and its service consultants, your user experience on the Platform may be impacted.
- DISPUTE RESOLUTION ASSISTANCE
While we cannot guarantee the work or service performance and quality by service consultants listed on the Platform, and while we have no obligation to you with regard to your relationship with a service consultant, the Company may, upon your request, provide limited assistance in resolving disputes between you and a service consultant. You must participate and do your utmost to resolve problems through the Company dispute resolution process. Such limited assistance in no way nullifies the release and indemnification described in these Terms and Conditions.
11. USER GENERATED CONTENT
Ratings & Reviews,
Photographs or Images,
Comments, Questions and/or Answers,
Any other content (collectively, “Content”) may be viewed by the general public and will not be treated as private, proprietary or confidential.
You authorize us and our affiliates, licensees and sub-licensees, without any notice and compensation to you or others, to copy, adapt, create derivative works of, reproduce, incorporate, distribute, publicly display or otherwise use or exploit such Content throughout the world in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights in such Content, and such permission shall be perpetual and may not be revoked for any reason. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Content posted or provided by you.
11.1 Grant of License
You hereby grant the Company and its users an irrevocable, non-exclusive, royalty-free, transferable, assignable, sub-licensable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, distribute, print, publish, disseminate and place advertisements near and adjacent to your Content in any format or media (whether now known or hereafter created) on the Platform in any manner that we deem appropriate or necessary, including, if submitted, your name, and likeness throughout the world. Users agree that the licence granted to the Platform shall be perpetual, and shall not be affected by the termination of the Platform or their account.
11.2 Representation of Ownership and Right to Use Content
By posting or providing any Content to the Company, you represent and warrant to the Company that you own or have all necessary rights to use the Content, and grant to the Company the rights granted below. The forgoing representation includes, but is not limited to a representation and warranty that you own or have the necessary rights (including any necessary releases) to grant all rights granted below in relation to any persons, places or intellectual property pictured in any photographic Content that you provide. In addition, if you post or otherwise provide any Content that is protected by copyright, you represent that you have obtained any necessary permissions or releases from the applicable copyright owner.
11.3 Content Guidelines
The Company reserves the right, but not the obligation, to edit or abridge, or to refuse to post, or to remove any content that you or any other users post on the Platform, at any time and without prior notice, if the Company determines (in its sole discretion) that such content contains or features any of the following:
Offensive, harmful and/or abusive language, including without limitation: expletives, profanities, obscenities, harassment, vulgarities, sexually explicit language and hate speech (e.g. racist/discriminatory speech);
References to illegal activity;
Language that violates the standards of good taste or the standards of the Platform;
Statements that are or appear to be false;
Comments that disparage the Company.
With respect to Ratings and Reviews of service consultants, all of the above and in addition the following:
Reviews that do not address the services of the service consultant or reviews with no qualitative value (e.g. “work has not started yet”)
Comments concerning a different service consultant.
Information not related to work requested in the service request.
If a dispute arises between a Consumer and service consultant, the rating submitted may be held in pending status until resolution is reached. Consumers represent and warrant that any Rating and Review provided is accurate and truthful, and that they will only provide a Rating and Review for a service consultant that has performed services for them pursuant to their applicable service request.
12. INTELLECTUAL PROPERTY RIGHTS
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively, “Proprietary Material”) that users see or read through the Platform is owned by the Company, excluding user-generated content that the Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. The Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the Copyright Ordinance of Hong Kong SAR, Chapter 528 of the Laws of Hong Kong SAR (the “Ordinance”), where practicable as amended. The Proprietary Material is protected by domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Platform without the Company’s express prior written consent and, if applicable, the holder of the rights to the user generated content. Any use of such Proprietary Material, other than as permitted herein, is expressly prohibited without the prior permission of the Company and, if applicable, the holder of the rights to the user generated content.
The service marks and trademarks of Company, including without limitation the Company and the Company logos are service marks owned by the Company. Any other trademarks, service marks, logos and/or trade names appearing via the Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
13. SERVICE PROS PRE-SCREENING PROCEDURES AND DISCLAIMERS
While the Company takes certain steps to verify the identity of service consultants, such verification is based on the information provided to us by service consultants. Thus, we cannot confirm that service consultants are who they claimed to be plus, we cannot and do not assume any responsibility for the accuracy or reliability of the identity or background check or any information provided by service providers themselves. Additionally, the aforementioned screening procedures are performed solely at the time the service consultants register on the Platform, and the information provided may change and expire over time. While we require service consultants to provide updated, current and accurate information in their profiles, we are under no obligation to update or to ensure that the information provided by service providers are accurate, current, and truthful. Consumers are advised to verify that information presented in the professional profile before hiring them.
DISCLAIMER: THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, RELATING TO THE SCREENING PROCESS, PROCEDURE, OR INFORMATION OBTAINED OR PRESENT IN THE SCREENING PROCESS OR DISCLOSURES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SCREENING OR VERIFICATION PROCEDURES OR STANDARDS ARE SUFFICIENT OR THAT THE INFORMATION RECEIVED IN THESE SCREENING OR VERIFICATION PROCEDURES IS ACCURATE, TIMELY OR ERROR FREE.
14. RATINGS & REVIEWS ARE NOT ENDORSED BY THE COMPANY
All Ratings and Reviews of a service pro displayed reflect the opinions of other Consumers, and do not reflect or represent the opinions or representations of the Company. The Company disclaims any and all representations or warranties with regard to the Ratings and Reviews. The Company does not assume responsibility or liability for any Review or for any claims, damages, or losses resulting from any use of the Platform or the materials contained therein.
15. ARTICLES AND OTHER CONTENT
The Company provides content relating to the services offered by service consultants in the Platform. Such contents are provided “As-Is”, without any warranties or representations, and you assume all liability and responsibility for your use of such Articles. You understand and agree that the Articles do not provide advice, and that such Articles are no substitute for the advice of a professional.
16. LINKS TO THIRD PARTY SITES
Links (such as hyperlinks) provided on the Platform do not constitute the endorsement by the Company of those sites or their content. Such links are provided as an information service, for reference and convenience only. The Company does not control any such sites, and is not responsible for their content, or any changes or updates to such sites. The existence of links on the Platform to such websites (including without limitation external websites that are provided by service pros, as well as any advertisements displayed in connection therewith) does not mean that the Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
17. DISCLAIMER OF WARRANTIES
18.1 Use of the Platform is entirely at Users’ own risk.
The Platform is provided on an “as is” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement. The Company makes no warranties or representations about the accuracy or completeness of the content provided through the service or the content of any sites linked to the service and assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content, (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the service, (iii) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein. Except as expressly set forth herein, the Company expressly disclaims any implied warranties of any kind, including, but not limited to, warranties of merchantability or fitness for a particular purpose. The Terms and Conditions will inure to the benefit of the company’s successors, assigns and licensees. If any provision of these terms and conditions shall be deemed unlawful, void or unenforceable, for any reason, by any court of competent jurisdiction that provision shall be modified in order to make it enforceable while maintaining the spirit of the provision. Alternatively, if the modification is not possible, such provision shall be stricken and shall not affect the validity and enforceability of the remaining terms. The failure of the company to exercise or enforce any right or provision of the terms and conditions shall not constitute a waiver of such right or provision. The section titles in the terms and conditions are for convenience only and have no legal or contractual effect. These Terms and Conditions constitute the entire agreement between you and the Company and supersede all oral and written negotiations or representations of the parties with respect to the subject matter hereof. These Terms and Conditions may not be modified or amended other than by an agreement signed by both parties.
17.2 No joint venture, agency, or employment
Users do not have authority to enter into contracts or commitments, whether written or oral, implied or express, on behalf of the Company. You acknowledge that we do not supervise, direct, or control a service consultant’s work or services performed in any manner. Service consultants may voluntarily wear a Company uniform or other Company badges purely for the purpose of identifying themselves as a service person contacted through the Platform or advertising and promotion service in exchange for monetary benefits. You understand and agree that if we are found to be liable for any claim in connection with your use of services, then you will immediately reimburse and pay to us an equivalent amount, including any interest or penalties thereon. You further agree to indemnify, hold harmless and defend us from any and all claims that a service consultant was classified as an independent contractor or an employee, any claims that we were an employer or joint employer of a service consultant, and any claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, overtime pay, MPF, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, or any other employee benefits.
18. EXEMPTION AND LIMITATION OF LIABILITY
You acknowledge and agree that the Company is only willing to provide the Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold the Company, its affiliates, its licensors, its clients in promotions, sweepstakes or contests, or any of such parties’ agents, employees, officers, directors, corporate clients, or users liable for any damage, suits, claims, and/or controversies (collectively, “liabilities”) that have arisen or may arise, whether known or unknown, relating to your or any other party’s use of or inability to use the service, including without limitation any liabilities arising in connection with the conduct, act or omission of any user (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any user, any instruction, advice, act, or service provided by the company or its affiliates or licensors and any destruction of your information.
Under no circumstances will the Company, its affiliates, its licensors, or any of such parties’ agents, employees, officers, directors, corporate clients, or users be liable for any direct, indirect, incidental, consequential, special or exemplary damages arising in connection with your use of or inability to use the services, even if advised of the possibility of the same.
The Company does not accept any liability with respect to the quality or fitness of any work performed via the platform.
If, notwithstanding the foregoing exclusions, it is determined that the Company or its affiliates, its licensors, or any of such parties’ agents, employees, officers, directors, corporate clients, or users is liable for damages, in no event will the aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by you to the company during the six (6) months prior to the time such claim arose.
You hereby agree to indemnify, defend, and hold harmless the Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’, investigators’, and experts’ (or similar) fees, disbursements and costs incurred, in connection with (i) your use or inability to use the Platform, in connection with the Platform, with regard to any dispute between you and a service pro, or your violation of these Terms and Conditions, or arising from your violation of any rights of a third party. The Company reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of the Company.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this clause. The appointing authority shall be Hong Kong International Arbitration Centre (HKIAC). The place of arbitration shall be in Hong Kong at HKIAC. There shall only be one arbitrator. The languages to be used in the arbitral proceedings shall be English and/or Chinese.
21. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China. The Hong Kong courts are to have non-exclusive jurisdiction to settle any disputes or claims which may arise out of or in connection with this Agreement for which purpose each party agrees to submit to the jurisdiction of the courts of the Hong Kong Special Administrative Region of the People’s Republic of China.