Poket Terms and Conditions
© Copyright Poket Private Limited 2013
Last modified: 10 June 2013
These terms and conditions (“Agreement”) are the legally binding terms and conditions between (1) Poket Private Limited (“Poket”), a company incorporated in Singapore; and (2) the party being a personal user (“Personal User”) or a merchant, retailer, commercial or other registered or organised entity (“Merchant”) (collectively, “you” or its derivatives), governing the access to or use of (“use” or its derivatives) Poket’s website, the Poket mobile application and any services offered by Poket (collectively, the “Services”). By registering with Poket, providing any information under the Services or starting or continuing to use the Services in any way, you acknowledge that you have read and agree to all the terms set out in this Agreement.
Poket offers you a revocable, non-transferable, non-exclusive and limited license to use the Services, upon the terms and conditions of this Agreement.
Poket offers you a revocable, non-transferable, non-exclusive and limited license to use the Services, upon the terms and conditions of this Agreement.
A. Personal Users. The Personal User: (i) shall use its real identity and personal information, and shall keep all information used/provided accurate, complete and up-to-date; (ii) shall not, under any circumstance, impersonate another person, use/provide fictitious or misleading information, or allow another person to impersonate it or use the Services under its identity; (iii) shall at all times exercise its own judgment and discretion in deciding whether to join or participate in any merchant programs made available by Merchants through the Services (“Merchant Programs”), and for the avoidance of doubt, Poket does not endorse or make any representation or warranty, express or implied, in respect of any Merchant or Merchant Program and disclaims any responsibility in respect of any terms and conditions of any Merchant Program; (iv) shall be solely responsible for assessing and agreeing with the terms and conditions of any Merchant Program and communicating with any Merchant in respect of any matter or dispute relating to any Merchant Program; (v) shall use the Services only for its personal and non-commercial purposes, always as intended, described or implied by Poket, and not for any purpose that is unlawful or prohibited by any applicable law, in contravention or infringement of the rights of third parties or in any way that could be detrimental to Poket or the Services; and (vi) authorises Poket to disclose any information provided by the Personal User under the Services to any Merchant with whom the Personal User is, or is applying to be, registered in respect of any Merchant Program.
B. Merchants. The Merchant: (i) shall use the Services only for its own business purposes, strictly in accordance with its applicable subscription plan with Poket (“Subscription Plan”) or as otherwise expressly agreed in writing by Poket under any applicable merchant agreement between the Merchant and Poket (“Merchant Agreement”), always as intended, described or implied by Poket, and not for any purpose that is unlawful or prohibited by any applicable law, in contravention or infringement of the rights of third parties or in any way that could be detrimental to Poket or the Services; (ii) authorises Poket to disclose any information provided by the Merchant in relation to the Merchant Program to any Personal User who is, or is applying to be, registered in respect of such Merchant Program, and Poket may, if it considers appropriate in its sole discretion, approve, modify or refuse any Poket-related communications from the Merchant to Personal Users.
3. Restrictions. Without prejudice to the generality of the foregoing, you shall not, in any way, directly or indirectly, in relation to any of the Services or part thereof: (i) sell, rent, lease, license or sublicense, assign, distribute, or transfer the Services; (ii) violate or compromise the functionality or security of the Services, including without limitation by copying, reproducing, creating derivative works of, deciphering, translating, disassembling, decompiling, reverse engineering or discovering, deriving or removing source code or trade secrets of the Services, whether in respect of any intellectual property, ideas, algorithms, file formats, programming, interoperability interfaces or otherwise, or make attempts to do any of the foregoing; or (iii) export or re-export the Services; or (iv) make attempts to do any of the foregoing, without Poket’s express prior written approval.
4. Disclaimer. Poket or the Services may provide you with information on Personal Users, Merchants or third parties who may or may not be users of the Services (collectively, “Third Parties”) or links to other websites or services on the Internet (“Third Party Websites”). Poket does not control and is not responsible for: (i) the acts, omissions, or compliance with any applicable laws, rules or regulations, of any Third Parties; or (ii) the functionality, security or any other aspect of any Third Party Websites. Poket does not verify, control and is not responsible for the accuracy, completeness or currency of any information provided in respect of any Third Parties, including any Personal User or Merchant, or any Third Party Website. You acknowledge and agree that in dealing with any Third Parties, using any Third Party Websites, or relying on any information provided to you under the Services, you do so at your own risk.
5. NO WARRANTY. WHILE POKET AIMS TO MAKE THE SERVICES AVAILABLE, FUNCTIONAL AND SECURE AS FAR AS REASONABLY POSSIBLE, YOUR ATTENTION IS SPECIFICALLY DRAWN TO THE FACT THAT POKET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND POKET HEREBY EXPRESSLY DISCLAIMS THE SAME. IN ADDITION, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND POKET DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. FURTHER, POKET MAY, IF IT DEEMS APPROPRIATE IN ITS SOLE DISCRETION AND WITH OR WITHOUT PRIOR NOTICE, UPDATE, MODIFY, RELEASE NEW VERSIONS OF, RESTRICT, SUSPEND OR TERMINATE ANY OF THE SERVICES PROVIDED. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE TO THE FOREGOING, AND THAT YOUR USE OF THE SERVICES IS SUBJECT TO THE SAME, AND YOU AGREE TO PUT IN PLACE SUCH CONTINGENCY PLANS AS ARE NECESSARY TAKING INTO ACCOUNT THE FOREGOING.
6. LIMITATION ON LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT POKET SHALL NOT, UNDER ANY CIRCUMSTANCES, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES, DAMAGES, LIABILITIES, CLAIMS, COSTS AND/OR EXPENSES OF ANY KIND WHATSOEVER INCLUDING LOSS PROFITS, LOSS OF REVENUE, LOSS OF CHANCE, LOSS OF DATA AND COSTS INCURRED TO LIMIT ANY OF THE FOREGOING ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICES, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH LOSSES OR DAMAGES WERE FORESEEABLE AND YOU ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
A. PERSONAL USERS. THE PERSONAL USER ACKNOWLEDGES THAT THE SERVICES ARE BEING PROVIDED WITHOUT CHARGE AND AGREES THAT IN ANY EVENT, POKET’S TOTAL LIABILITY TO A PERSONAL USER FOR ANY AND ALL CLAIMS WHATSOEVER ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED S$50.
B. MERCHANTS. THE MERCHANT ACKNOWLEDGES AND AGREES THAT IN ANY EVENT, POKET’S TOTAL LIABILITY TO A MERCHANT FOR ANY AND ALL CLAIMS WHATSOEVER ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY THE MERCHANT TO POKET UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE DATE OF FORMAL COMMENCEMENT OF ACTION BY THE MERCHANT IN RESPECT OF ANY CLAIM.
7. Indemnity. You shall, at your sole cost and expense, defend, indemnify and hold harmless Poket, Poket’s employees, directors and officers as well as any Poket affiliates, such as agents, sub-contractors, accountants, bankers, financial or legal advisors or consultants, from and against any direct, indirect, special, incidental or consequential losses, damages, liabilities, claims, costs and/or expenses of any kind whatsoever including loss profits, loss of revenue, loss of chance, loss of data and costs incurred to limit any of the foregoing arising out of your breach of any of the terms of this Agreement.
8.Representations and Warranties.
A. Personal Users. The Personal User represents and warrants that: (i) it is legally capable of entering into this Agreement; and (ii) all actions have been taken by it to ensure that the entry and performance of this Agreement will not infringe any laws or regulations applicable to it or contravene any agreement or contract binding on it; (iii) the Agreement is binding and enforceable against the Personal User in accordance with all its terms.
B. Merchants. The Merchant represents and warrants that: (i) it is a duly established and existing legal entity in its country of incorporation and all necessary approvals, permits, authorisation and licences from the authorities required by it under the laws and regulations of its country of incorporation to enter into and perform this Agreement have been obtained; (ii) all actions have been taken by it to comply with all legal, corporate and other requirements necessary to ensure that the entry and performance of this Agreement will not infringe any laws or regulations applicable to it or contravene its constitutional documents or any agreement or contract binding on it; and (iii) the Agreement is binding and enforceable against the Merchant in accordance with all its terms.
9.Intellectual Property. Poket owns all right, title and interest in and to the Services including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as provided in this Agreement, all such rights not expressly granted to you are reserved.
10. Confidentiality. Each party acknowledges that in connection with this Agreement it will have access to certain confidential, personal and/or proprietary information of the other party (“Confidential Information”). Confidential Information includes but is not confined to information either marked as confidential or information known by the receiving party as being treated by the disclosing party as confidential, and shall remain the sole property of the disclosing party. The receiving party agrees to keep Confidential Information confidential and not to use such information except as authorised by this Agreement or the disclosing party, and to accord to such information the same standards and protections that it uses to protect its own confidential information, save that the receiving party shall have the right to disclose Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in this Agreement. The prohibitions contained herein will not apply to information: (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under this Agreement to the extent that Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information. Except for Confidential Information necessary for the performance of obligations or exercise of rights under this Agreement, materials or documents containing Confidential Information will be returned to the disclosing party promptly following written requests thereof or otherwise in accordance with this Agreement.
11. Force Majeure. If any party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control, the time for that party’s performance will be extended for the period of the delay or failure to perform due to such cause, except that you will not be excused from the payment of any sums of money owed by you to Poket prior to such cause.
A. Personal Users. Poket or the Personal User may terminate this Agreement at any time with or without reason or notice. Poket may terminate this Agreement by ceasing to provide the Services to the Personal User, and the Personal User may terminate this Agreement by uninstalling the Application from its mobile devices and never access to Poket Personal User account again. Upon termination, (i) Poket shall be entitled to inform any Merchant with whom the Personal User has registered in respect of any Merchant Program of the Personal User’s termination of this Agreement, and may delete or retain information relating to the Personal User as allowed or required under applicable law; and (ii) the Personal User shall immediately cease using the Services in any way save only for the purposes of terminating the Agreement or complying with any obligations surviving thereafter.
B. Merchants. Poket or the Merchant may terminate this Agreement in accordance with the Merchant Agreement, the Subscription Plan, or this Agreement. In the event of any inconsistency in the terms thereof, the following shall prevail from most to least controlling: (1) the Merchant Agreement; (2) the Subscription Plan; and (3) this Agreement. Unless otherwise provided in the Merchant Agreement or Subscription Plan, at the end of the applicable Subscription Plan (“Existing Subscription Plan”), the Existing Subscription Plan will automatically renew for another year unless either party gives written notice to the other party at least thirty (30) days before the expiration of the initial or any renewal term of the party’s intent not to renew. No subscription amount shall be refunded to Merchant upon termination. Each party (“Terminating Party”) shall have the right to terminate the Agreement with immediate effect by giving written notice to the other party (“Other Party”), or in the case of termination by Poket, by Poket ceasing to provide the Services to the Merchant, or in the case of termination by the Merchant, by the Merchant de-registering its account with Poket: (i) if the other party becomes insolvent, goes into liquidation, passes any resolution for its liquidation or winding up, or any step is taken by the Other Party or any other third party for the appointment of a receiver, judicial manager or like officer in relation to the Other Party; (ii) upon the dissolution of the Other Party; or (iii) if the Other Party is in material breach of any of its obligations under this Agreement (including non-payment of any amounts due and payable by the Merchant to Poket) and has not cured such breach to the reasonable satisfaction of the Terminating Party within fourteen (14) days of the Terminating Party’s notice to the Other Party to cure such breach. Upon termination: (i) Poket shall be entitled to inform any Personal User which has registered with the Merchant in respect of any Merchant Program of the Merchant’s termination of this Agreement and any matter relating thereto, and may delete or retain information relating to the Merchant as allowed or required under applicable law; and (ii) the Merchant shall immediately cease using the Services in any way save only for the purposes of terminating the Agreement or complying with any obligations surviving thereafter.
C. Surviving Obligations. The obligations of Poket and you under this Agreement that by their nature would continue beyond the termination of this Agreement, including without limitation obligations of confidentiality, shall survive termination thereof.
13. Notices, In Writing. Any reference in this Agreement to a notice or the terms “in writing”, “written” or similar shall include the same delivered or done in electronic form or by electronic means. Any notice under this Agreement shall be given: (i) electronically, when receipt is confirmed by the receiving party, evidenced by electronic evidence of delivery, or when reasonably understood or expected to have been received, whichever is the earliest; or (ii) by delivery to the party in person, by courier, by facsimile or by registered mail when receipt is confirmed by the receiving party or respectively, at the time of delivery in person, one day after courier delivery, one day after facsimile transmission, and two business days after delivery of registered mail, whichever is the earliest.
14. Independent Contractors. The relationship between Poket and you is that of independent contractors and nothing in this Agreement and no action taken by the parties hereunder shall create or be construed as creating any agency, distributorship, partnership, joint venture or the like for any purpose whatsoever and neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
15. Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by you without Poket’s prior written consent.
16. Severability. If any provision or part thereof of this Agreement is held to be unenforceable or invalid for any reason, by virtue of being illegal, contrary to public policy or for any other reason, the remaining provisions or parts thereof, to the fullest extent possible, shall continue in full force and effect.
17. Entire Agreement. This Agreement shall include and apply to the terms of any Merchant Agreement and Subscription Plan. In the event of any inconsistency in the terms thereof, the following shall prevail from most to least controlling: (1) the Merchant Agreement; (2) the Subscription Plan; and (3) this Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior statements, whether oral or written, representations, discussions, negotiations and agreements, by phone, e-mail, instant messaging or other means.
18. Amendment and Waiver. Poket may amend any of the terms and conditions of this Agreement from time to time, and shall publish the updated terms and conditions on Poket’s website or through the Services. You shall be solely responsible for regularly reviewing and keeping yourself informed and up to date of the terms and conditions of this Agreement. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of any breach and the waiver of any breach will not act as a waiver of any subsequent breaches.
19. Further Assurances. The parties shall each do all such acts, matters and things as may be reasonably necessary to give full effect to this Agreement.
20. Costs and Expenses. Each party shall pay its own costs and expenses in connection with this Agreement.
21. No Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act
(Cap 53B) to enforce any term of this Agreement.
22. Governing Law and Dispute Resolution. The Agreement is governed by and construed in accordance with the laws of Singapore, to the exclusion of conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any dispute arising from or in connection with this Agreement shall be dealt with by the courts of Singapore and the parties irrevocably submit to the exclusive jurisdiction thereof and agree not to raise any defence of forum non conveniens or similar defence.