Terms of Service
Last updated: 2 March 2023
1. Overview and Acceptance of Terms
Choco Up is a global technology and financial service platform, providing e-commerce and startups with revenue-based financing and business growth solutions. The Choco up website and login portal (collectively, the “Site”) is operated by Happy CP Company Limited (trading as “Choco Up”), and companies within the Choco Up group.
The following Terms of Service, together with any other terms or policies referred to in it (collectively, the “Terms”), set out the terms and conditions on which you may make use of the Site, including the Services available from the Site, whether as a guest or a registered user. Use of the Site includes accessing, browsing, or registering for an account to use any of the Services.
In addition to these Terms, you may enter into other agreements with us or others that will govern your access and use of the Services. If there is any conflict between these Terms and any other fully executed agreement you have entered into with us for specific aspects of a Service, the other fully executed agreement will take precedence in relation to the specific aspects of the Service to which it applies. Please note that any financing you may receive from us will be subject to separate financing agreement(s) fully executed by you and us. Accordingly, any financing offers, commitments or other expressions of interest you may receive from us is non-binding and can be withdrawn by us at any time for any reason without notice.
Please read these Terms carefully before using the Site. By using any part of the Site or by registering for an account, you confirm that you accept these Terms and you agree to be legally bound by and comply with them. If you do not agree to some or all these Terms, then you may not access the Site or continue to register for an account.
If you are entering into these Terms on behalf of an incorporated business or a legal entity (whether they be your business or your employer or your principal), you represent that you have the authority as an authorized representative to bind such incorporated business or legal entity to these Terms. If you do not have such authority, you may not access or use the Site.
2. Key Definitions
Throughout the Site, where we refer to “Choco up”, “we”, “us” or “our”, we mean Happy CP Company Limited trading as “Choco Up” and its affiliates. Where we refer to “you” or “your”, we mean both you personally and as an authorized user of the Site on behalf of your business or your employer or your principal.
“Personal Information” means any personal information relating to you, including first name, last name, email address, and any other information that includes individually identifiable information.
“Services” means the information, tools, resources, business solutions and products provided to you directly from us through the Site, whether in connection with a paid subscription or provided for free, but excludes Third Party Offerings, after you register for an account and gain access to the Site. Services shall also include an application process for, and provision of, revenue-based financing and any other financial services provided by us from time to time.
“Third Party Offerings” means any third-party products, applications, websites, implementations or services, that the Services link to, or that interoperate with or are used in conjunction with the Services.
3. Accessing and Using the Site and Services
a) The Site
If you register for an account and upon successful registration, your account and use of the Site gives you access to the Services, functionality and content that we may establish and maintain from time to time and in our sole discretion. You are responsible for your use and access of the Site. You may use the Site only in compliance with these Terms and any other the terms provided by any third-party service applicable to you, and all applicable local, state, national, and international laws, rules and regulations.
b) The Services
When you access the Site, we will make the Services which you can subscribe to available to you, subject to these Terms. You are responsible for your use of the Services. We do not warrant that the quality of any of the Services will meet your expectations, or that any errors in the Services will be corrected. We reserve the right, but are not obligated, to limit the use of the Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Services that we oﬀer. Any oﬀer for any Service made on the Site is void where prohibited. We may also, in the future, oﬀer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.
c) Third Party Offerings
Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under these Terms and are not subject to any of the warranties, service commitments or other obligations with respect to the Services hereunder. The availability of any Third-Party Offerings through the Services does not imply our endorsement of or affiliation with the provider. We do not control the Third-Party Offerings and will have no liability to you in connection with any Third-Party Offerings. We have no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third-Party Offering, you are expressly permitting us to disclose your Personal Information or other information to the extent necessary to utilize the Third-Party Offering. YOUR USE OF THIRD-PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).
We are able to offer you and your business the ability to process payments (“Payment Processing Services”) and/or manage your business accounts (“Wallet Services”). Payment Processing Services and Wallet Services are provided by our third-party partners as Third-Party Offerings and any procurement by you will be subject to a separate agreement which will be solely between you and the third-party partner. If you choose to use Payment Processing Services or Wallet Services you agree that you will comply with the terms and conditions of any applicable agreements and all applicable card or account network rules, policies, laws and regulations, at all times while using such services.
d) Payment Processing
Our Payment Processing Services are provided by Stripe which are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”) and you may be subject to certain fees and surcharges communicated to you during the registration process and as may be updated by us from time to time. By agreeing to use Stripe, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time.
e) Wallet Services
Our Wallet Services are provided by Airwallex which are subject to the Airwallex Terms and Policies, which includes Airwallex Merchant Scale Terms, Airwallex Marketplace Scale Terms (collectively, the “Airwallex Services Agreement”). By agreeing to use Airwallex, you agree to be bound by the Airwallex Services Agreement, as the same may be modified by Airwallex from time to time.
f) Changes to the Services
Your access and use of the Site or the Services may be interrupted from time to time for any reason, including the malfunction of equipment, periodic updating, maintenance or repair, events beyond our control, or other reasons determined by us. In no event will we be liable to you or any party for any harm, loss, cost or damage arising out of, resulting from, or attributable to any period of downtime of, or inability to access and use, the Site and the Services. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services. The provisions of this Section are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms.
4. Unlawful or Prohibited Use
As a condition of your access and use of the Site and Services, you will not:
a) access the Site or use the Services for any purpose or in any way that is criminal, unlawful, infringes anyone’s right, offensive, inappropriate, interferes with the Site or Services, or is otherwise prohibited by these Terms.
b) sublicense, resell, lease, transfer or otherwise commercially exploit the Site or Services or compete in any way with the Site or Services.
c) use the Site to store or transmit any content that may be infringing, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws;
d) use the Site to transmit any worms or viruses or any code of a destructive nature;
e) attempt to gain unauthorized access to the Site, the Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Site;
f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site or the Services or attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Site or the Services;
g) engage in the practices of “screen scraping”, “database scraping” or any other activity with the purpose of obtaining content or other information; and
h) authorize, permit, or encourage any third-party to do any of the above.
A breach or violation of any of the Terms will result in an immediate termination of access to our Site and Services.
5. Registration, Login and Password
To use our Services you must register an account on the Site. You will be asked to set a password as part of our security procedures; you must treat this password as confidential. You must not disclose it or your login details to any third party.
You may never use another user’s account without permission. You are responsible for safeguarding any password that you use to access the Site and for any activities or actions under your password. You agree to:
a) notify us of any unauthorized use of your password or user identification and any other breach of security; and
b) ensure that you exit from your account at the end of each session.
If you know or suspect that anyone other than you (or your employer or principal) knows your user login details or password, or if you see any unauthorised activity or transaction using your login, you must promptly notify us at: email@example.com
6. Accuracy of and Changes to your Information (including Personal Information)
You agree to provide: (a) true, accurate and complete business profile such as type of business and registered and business addresses, financial statements, organizational documents, organizational information, beneficial ownership information, director and employee information, sales volumes and other information as may be prompted by any registration or other forms on the Site or the Services or as otherwise requested by us, including with respect to accounts maintained at third party sites; and, (b) other information (including personal information), documents and materials as we may request to establish and verify your or any other person’s identity or authority to enter into binding agreements on behalf of the incorporated business or other legal entity, to establish and verify the incorporated business’s or other legal entity’s legal existence, good standing in any jurisdiction and eligibility to access and use the Site or the Services, or to establish and verify your eligibility (collectively, “Business Information and Supporting Materials”).
You further agree to promptly update all your Business Information and Supporting Materials whenever such information, documents and material is no longer accurate. If you do not do this, the accuracy and effectiveness of the Services provided or made available to you will be affected. If you need help in changing your Business Information and Supporting Materials, please email us at firstname.lastname@example.org. We are not responsible for any processing or technical errors or fees or other Services-related issues arising from your failure to keep your Business Information and Supporting Materials current. You represent and warrant that you have all requisite right, power, and authority to provide us with all Business Information and Supporting Materials and other information and material necessary to facilitate your access and use of the Site and Services.
In addition, in consideration of your access and use of the Site and Services on behalf of an incorporated business or other legal entity, you, on behalf of such person, agree to promptly notify us regarding any material changes to information or circumstances impacting the incorporated business or other legal entity’s legal existence, good standing in any jurisdiction in which the incorporated business or other legal entity is authorized to conduct business, or eligibility for continued access and use of the Site and Services.
We do not assume any responsibility for the timeliness, accuracy, deletion, non- delivery, or failure to store Business Information and Supporting Materials. We will have no liability to you for any harm, loss, cost or damage arising out of, resulting from, or attributable to the Business Information and Supporting Materials. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms of Service.
7. Privacy and Use of Personal Information
In consideration of your use of the Site, you agree (a) that your Personal Information uploaded to the Site will be true, accurate, current and complete, and (b) to maintain and promptly update your Personal Information to keep it true, accurate, current and complete.
By using the Site, you hereby warrant that we may use any or all of the Personal Information in connection or combination with the Services and for any reason, including to provide, maintain, protect and improve the Services and to develop and market the Services, and provide any or all of the Personal Information to third parties that provide certain functions and other services for us or marketing in connection with the Services.
8. Intellectual Property Rights
We are the owner or the licensee of all intellectual property rights in the Site, all the content included or available on the Site and through the Services, including all materials, information, text, data, analyses, valuations, models, software or other application or output therefrom or any part thereof, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology and other intellectual property rights but excluding content or products or services provided by third parties (collectively, the “Works”). Those Works are protected by copyright laws and treaties around the world. Accordingly, accessing and using the Site and Services does not give you ownership of any intellectual property right, title or interest in or to the Works. All rights are hereby reserved. Without limiting the foregoing, none of the Works may be copied, reproduced, duplicated, published or otherwise distributed in any form or by any means whatsoever without our or our licensors’ express prior written permission.
Any feedback, questions, comments, suggestions, ideas or the like that you share or otherwise disclose to us will be treated as being non-confidential and non- proprietary. We will be free to use such feedback, questions, comments, suggestions, ideas or the like for any purpose whatsoever without any obligation to you, including improving or marketing the Services or developing new services.
We may revoke or terminate your access to the Site without notice for any reason in our sole discretion, including but not limited to your violation of these Terms, or if our provision of the Site or the Services is no longer commercially viable. Upon termination by us, your rights to access and use the Site and Services will automatically terminate, and you will cease all use of the Site and Services.
Nothing in this Section shall affect our rights to change, limit, or stop the provision of the Site or Service without prior notice.
10. Disclaimers, Indemnification and Limitations of Liability
Please read this Section carefully since it limits the liability of Choco-up and its affiliates, officers, directors, shareholders, employees, agents, representatives, partners, and/or licensors (collectively, the “Choco-up Entities”). Each of the Subsections below only applies up to the maximum extent permitted under applicable law. Nothing in this Section is intended to limit any rights you may have which may not be lawfully limited.
a) The Site is Available AS-IS
We do not guarantee that the Site and the Services, will always be available or be uninterrupted access. We will not be liable to you if for any reason our Site or Services are unavailable at any time or for any period.
As such, your access to and use of the Site and the Services is at your own risk. You understand and agree that the Site and the Services are provided to you on an AS IS and AS AVAILABLE basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Choco-up Entities DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. No advice or information, whether oral or written, obtained from any of the Choco-up Entities or through the Site, will create any warranty not expressly made herein.
b) Accuracy, Completeness and Timeliness of Information
We are not responsible if information made available on the Site is not accurate, complete or current. The material on the Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Site is at your own risk.
d) Links to third-party
The Site may contain links to third-party websites or resources, including the Third-Party Offerings. You acknowledge and agree that the Choco-up Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Choco-up Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
d) Optional Tool
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools AS IS and AS AVAILABLE without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of the optional tools oﬀered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which the tools are provided by the relevant third-party provider(s).
You, your successors and permitted assigns will defend, indemnify and hold harmless Choco-Up, including our affiliates and our and their respective officers, directors, shareholders, employees, agents, representatives, partners, and/or licensors, from and against all losses, claims, obligations, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, demands and expenses of whatever kind, including reasonable legal fees disbursements and the cost of enforcing our rights under these Terms, in whole or in part arising out of, resulting from, or attributable to any actual or alleged breach of these Terms by you, your violation of any third party right, your access or use of a third party service, your relationship with any third party, or your other access, contribution to, use of the Site and Services. We will provide notice to you of any such claim, suit or demand. We reserve the right to assume the exclusive defense and control of any matter which is subject to the obligations under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
f) Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CHOCO-UP ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON, THROUGH, OR ASSOCIATED WITH THE SITE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SITE; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE CHOCO-UP ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID CHOCO-UP, IF ANY, IN THE PAST SIX MONTHS FOR THE SITE GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE CHOCO-UP ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. Other Terms
a) Waiver and Severability
The failure of Choco-up to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
You may not assign these Terms without our prior written consent, but we may assign or transfer these Terms, in whole or in part, without restriction, to any third-party or our successors or assigns.
c) Governing Law
These Terms and any action related thereto will be governed by the laws of Hong Kong without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings, or litigation arising in connection with the Site or Services will be brought solely in the courts of Hong Kong, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
d) Entire Agreement
Notwithstanding the foregoing, nothing in these Terms supersedes or limits your rights under applicable laws or regulations to the extent these Terms are prohibited by such laws or regulations.
We may modify the form, nature, and/or functionality of the Site and the Services and your access to it in our sole discretion and without prior notice to you. We may also amend these Terms or any portion thereof from time to time in our sole discretion. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO CEASE ALL USE OF THE SITE AND THE SERVICES. YOUR CONTINUED USE OF THE SITE AND THE SERVICES AFTER THE EFFECTIVE DATE OF CHANGES WILL BE DEEMED TO BE ACCEPTANCE OF SUCH CHANGES.
We shall not be liable to you or to any third-party for any modiﬁcation, suspension or discontinuance of the Site and the Services.
12. Contact Us.
If you have any questions about these terms, please email: email@example.com