Smartie Super App Terms and Conditions
1. About the Smartie Super App
1.1 Please read these Terms and Conditions carefully. By using the
Service (as defined below) you agree that you have read and
understood the terms in these Terms and Conditions which are
applicable to you. These Terms and Conditions and the Smartie
Policies (as defined below) constitute a legally binding agreement
(“Agreement”) between you and Smartie (as defined below). The
Agreement applies to your use of the Service/s provided by
Smartie.
If you do not agree to the Terms and Conditions please do not use
or
continue using the Platform (as defined below) or Service/s.
1.2 Smartie may amend the terms in this Agreement at any time.
Such
amendments shall be effective once they are posted on
http://www.Smartie.com or in
the Smartie Super App. It is your responsibility to review the
Terms
and Conditions and Smartie Policies regularly. Your continued use
of
the Service/s after any such amendments whether or not reviewed by
you shall constitute your agreement to be bound by such
amendments.
1.3 SMARTIE GROUP LIMITED IS A “FINANCIAL TECHNOLOGY COMPANY”
WHICH
PROVIDES A PAYMENT PLATFORM FOR USERS TO OBTAIN OR PROCURE GOODS
AND
SERVICES. DEPENDING ON THE GOODS OR SERVICES IN QUESTION THE GOODS
OR SERVICES MAY BE SUPPLIED BY SMARTIE OR A PARTNER OR A THIRD
PARTY. WHERE THE GOODS/SERVICES ARE PROVIDED BY A PARTNER OR A
THIRD
PARTY SMARTIE’S ROLE IS MERELY TO LINK THE USER WITH SUCH PARTNERS
OR THIRD PARTY’S. SMARTIE IS NOT RESPONSIBLE FOR THE ACTS AND/OR
OMISSIONS OF ANY PARTNER OR THIRD PARTY’S. PARTNERS OR THIRD
PARTY’S
SHALL BEAR ALL LIABILITY IN RELATION TO SUCH GOODS/SERVICES.
PARTNERS OR THIRD PARTY’S ARE NOT AND SHALL NOT HOLD THEMSELVES
OUT
TO BE AN AGENT EMPLOYEE OR STAFF OF SMARTIE AND THE SOLUTIONS
PROVIDED BY PARTNERS OR THIRD PARTY’S SHALL NOT BE DEEMED TO BE
PROVIDED BY SMARTIE.
2. Definitions
In these Terms and Conditions the following words shall have the
meanings ascribed below:
2.1 “Super App” means the relevant mobile application(s) made
available for download by Smartie to Users and Partners
respectively;
2.2 “User” means any end-user who accesses or uses the Platform to
search for and obtain the Solutions including SmartPay Merchants;
2.3 “User Charges” means charges incurred by Users for the
solutions
obtained through the use of the Service/s including any applicable
tolls taxes and any other fees or charges that may be due for a
particular use of the Service/s or Solution/s;
2.4 “Smartie” “we” or "us" means:
-
2.4.1 SmartPay SmartStay SmartTours SmartRide SmartFood and any
other Smart ”Service or Product” released;
-
2.4.2 any relevant subsidiary affiliate associated company or
entity owned or controlled by Smartie Group Limited.
2.5 “Smartie Policies” means the following:
- 2.5.1 the Privacy Policy;
-
2.5.2 all other forms policies notices guidelines frequently
asked
questions (FAQs) in-app or website product/service descriptions
and information cards or agreements provided to or entered into
by
you from time to time;
2.6 “Partner” means the independent third parties (who are not
Smartie) who provide the relevant Solutions to Users through the
Service/s including (a) driver-partners delivery-partners (b) our
merchant-partners and (c) any other relevant goods and services
providers;
2.7 “Personal Data” is any information which can be used to
identify
you or from which you are identifiable. This includes but is not
limited to your name nationality telephone number bank and credit
card details personal interests residential address email address
your image government-issued identification numbers biometric data
race date of birth marital status religion health information
vehicle and insurance information etc;
2.8 “Platform” means the Smartie Super App Software and any other
platform portal or website which Smartie owns operates or
otherwise
makes available to Users and/or Partners for the purposes of or in
connection with the Service/s and/or Solution/s provided;
2.9 “Platform Content” means any content as made available on the
Platform or any part thereof;
2.10 “Privacy Policy” means our Privacy Policy accessible at:
https://www.Smartie.com/privacy-policy/
as amended from time to time;
2.11 “Rectification Measure” has the meaning ascribed to it in
Clause 29.2;
2.12 “Service” means the linking of Users to Partners or other
Users
to facilitate the Solutions;
2.13 “Software” means any software in connection with the Smartie
Super App Service and/or Solutions which is made available by
Smartie;
2.14 “Solutions” means the payment transactions transportation
logistics food and beverage groceries and/or any other products
and
services which are made available to Users through the following
offerings:
- 2.14.1 SmartPay;
- 2.14.2 SmartStay;
- 2.14.3 SmartTours;
- 2.14.4 SmartFood;
- 2.14.5 SmartRide;
-
2.14.6 Any such other offerings which Smartie may make available
from time to time;
2.15 “you” refers to the Partner and/or User as may be applicable.
3. Representations Warranties and Undertakings
3.1 By using the Service and/or Platform you represent warrant and
undertake that:
-
3.1.1 You have legal capacity to enter into the Agreement and
that
you are at least eighteen (18) years old.
-
3.1.2 You will provide true accurate not misleading current and
complete information as required for the Service and undertake
the
responsibility to maintain and update your information in a
timely
manner to keep it true accurate not misleading current and
complete at all times during the term of the Agreement. You
agree
that Smartie may rely on your information as true accurate not
misleading current and complete. You acknowledge that if your
information is untrue inaccurate misleading not current or
incomplete in any respect Smartie has the right but not the
obligation to terminate this Agreement and your use of the
Service
at any time with or without notice;
-
3.1.3 You will provide us with whatever proof of identity or any
other documents permits licenses or approvals which we may
reasonably request or require;
-
3.1.4 You will only use an access point or account which you are
authorised by Smartie to use;
-
3.1.5 You acknowledge and agree that only one (1) User &/or one
(1) Merchant account can be registered on one device except as
otherwise permitted by Smartie;
-
3.1.6 You will keep your account password or any other personal
identification number or name we provide you which allows access
to the Service secure and confidential;
-
3.1.7 You will not authorise others to use your identity or user
status and you may not assign or otherwise transfer your user
account to any other person or entity;
-
3.1.8 You agree to notify us immediately of any unauthorised use
of your account or any other breach of security;
-
3.1.9 When using the Service/Platform you agree to comply with
all
laws applicable to you and/or your use of the Service/Platform;
-
3.1.10 You will only use the Platform and Service for their
intended and lawful purposes;
-
3.1.11 You will not try to interrupt impair or harm the Service
and/or Platform in any way and shall refrain from:
-
(a) sending spam or otherwise duplicative or unsolicited
messages;
-
(b) sending or storing infringing obscene threatening libelous
or otherwise unlawful or tortious material including but not
limited to materials harmful to children or violative of
third-party privacy rights;
-
(c) sending material containing software viruses worms trojan
horses or other harmful computer code files scripts agents or
programs;
-
(d) interfering with or disrupt the integrity or performance
of
the Platform or the data contained therein;
-
(e) attempting to gain unauthorised access to the Platform or
its related software systems or networks;
-
(f) impersonating any person or entity or otherwise
misrepresent
your affiliation with a person or entity;
-
(g) engaging in any conduct that could possibly damage our
reputation or amount to being disreputable;
-
(h) circumventing the proper operation of the Platform and
network which the Service operates on; and
-
(i) using any manual or automated program or script including
but not limited to web spiders web crawlers web robots web
ants
web indexers bots viruses or worms or any program which may
make
multiple server requests per second to unduly burden or hinder
the operation and/or performance of the Platform or to
circumvent the navigational structure or presentation of the
Platform or its content;
-
3.1.12 You will not attempt to commercially exploit any part of
the Platform without our permission. For the avoidance of doubt
you are not permitted to modify or make derivative works based
on
the Platform its content or any part thereof in any way or copy
reproduce publicly display distribute or otherwise use or
communicate them for any public or commercial purpose save where
specifically permitted in writing by Smartie. This includes
without limitation not to:
-
(a) create or compile directly or indirectly any collection
compilation or other directory from any content displayed on
the
Platform except for your personal non-commercial use;
-
(b) copy any content displayed through the Platform or
“mirror”
the Platform or any parts thereof on any other server or
wireless or internet-based device including reproducing any
third-party product content and reviews for republication in
any
format or media; or navigational structure or presentation of
the Platform or its content elsewhere;
-
(c) conduct data mining or scraping activities unless an
exception applies under applicable law; and
-
(d) disassemble decompile reverse engineer decrypt or attempt
to
derive and code or extract software from the Platform or any
software or services made available on or through the
Platform;
-
3.1.13 You will not utilise modified devices or applications
with
the intent of evading detections or facilitating any activities
intended to defraud Smartie or to disrupt the natural functions
of
the Platform;
-
3.1.14 You will not use the Platform for sending or storing any
unlawful material or for fraudulent purposes;
-
3.1.15 You will not use the Platform to cause nuisance or behave
in an inappropriate or disrespectful manner towards Smartie or
any
third party;
-
3.1.16 You agree that the Service is provided on a reasonable
effort basis;
-
3.1.17 You agree that your use of the Service will be subject to
the Smartie Policies as may be amended from time to time;
-
3.1.18 You agree to assist Smartie with any internal or external
investigations as may be required by Smartie in complying with
any
prevailing laws or regulations in place;
-
3.1.19 You provide us the phone numbers of Smartie users and
other
contacts in your mobile phone address book on a regular basis.
You
confirm that you are authorised to provide us with such numbers
to
enhance the Service/Platform for your use or such other purpose
as
we may communicate to you before or at the point of provision;
-
3.1.20 You are aware that when requesting Solutions by SMS or by
using the Service or accessing the Platform standard
telecommunication charges will apply;
-
3.1.21 You agree that Smartie may based on its sole discretion
consider an account to be dormant if there has been no
transactions made by you on your user account for a period of
six
(6) months from the last date of transaction and deactivate or
restrict access to your user account; and
-
3.1.22 You agree to assume full responsibility and liability for
any penalties incurred and for any loss or damage suffered by
yourself Smartie or any other party as a result of your breach
of
this Agreement.
3.2 If you are a Partner you further represent warrant and
undertake
that:
-
3.2.1.You possess all the appropriate licenses approvals permits
consents authority and mandatory insurance policies related to
or
in connection with your provision of the Solution/s in the
jurisdiction in which you use the Service;
-
3.2.2 If applicable you own or have the legal right and
authority
to operate and you have all appropriate licences and approvals
in
respect of any vehicle equipment premises or any other matter or
thing which is involved or used in the course of your provision
of
the Solution/s;
-
3.2.3 If applicable you have a valid policy/ies of liability
insurance (in industry-standard coverage amounts) in connection
with your provision of the Solution/s;
-
3.2.4 You shall be solely responsible for any and all claims
judgments and liabilities resulting from any accident loss or
damage including but not limited to personal injuries death
total
loss and property damage which is due to or is alleged to be a
result of the Solution/s provided by you;
-
3.2.5 You shall obey all local laws and regulations related to
your provision of the Solution/s and will be solely responsible
for any violations of such local laws or regulations;
-
3.2.6 You shall not contact Users for purposes other than in
connection with the Service;
-
3.2.7 You shall not reverse look-up trace or seek to trace any
information on any other User of or visitor to the Platform or
any
Users including without limitation any User account not owned by
you to its source or exploit the Platform or any service or
information made available or offered by or through the Platform
in any way where the purpose is to reveal any information
including but shall not be limited to personal identification
information other than your own information as provided for by
the
Platform;
-
3.2.8 You are aware that when responding to Users standard
telecommunication charges may apply which shall be solely borne
by
you;
-
3.2.9 If you are required to and do sign up for an account on
behalf of your employer or organisation your employer or
organisation shall be the owner of the account and you represent
and warrant that you have the authority to bind your employer or
organisation to the Agreement;
-
3.2.10 You agree that you are forbidden from giving out coupons
and suggesting any other form of discounts to the Users. You are
strictly forbidden to use the Service and Platform for other
purposes such as but not limited to data mining of Smartie’s
information or information related to the Platform or the
Service
unless an exception applies under applicable law. A breach
hereof
constitutes a grave offence and may be treated as industrial
espionage or sabotage and Smartie reserves the right to take
such
action as may be appropriate or permitted under the law against
you and/or any person whether natural or artificial directing or
instructing you in the event you use the Service/Platform other
than for the purpose for which it is intended to be used; and
-
3.2.11 Without prejudice to any other provisions information
which
you have submitted to us for your registration as a Partner on
the
Platform which may include your personal data as described in
the
Privacy Policy may be linked to the account on the Platform or
otherwise be temporarily displayed in the course of the Services
on the Platform. You hereby give your consent to such use of
information for the purposes of the Solutions and to facilitate
your use of the Platform. Your use of the Platform or any part
thereof may be monitored by us or a third party service provider
to provide you with information on your business and account as
well as better services. You further agree that any personal
data
you receive via the Platform or otherwise in connection with the
Solutions shall only be used for the direct and specific purpose
for which you are originally provided the personal data and such
personal data shall be deleted or anonymised once the personal
data is no longer required to be retained for the said purpose.
For the avoidance of doubt when you are provided with personal
data of a User via the Platform for the purposes of obtaining
prior confirmation to amend an order placed you shall only use
the
personal data provided for that sole purpose and remove it as
soon
as you no longer need the data for that purpose.
- 3.2.12 The Merchant acknowledges that displaying a business logo is an important element of building trust and authenticity on the Platform. While providing a logo is not mandatory, Merchants are strongly encouraged to upload their official business logo.
- 3.2.13 In the absence of a Merchant-provided logo, the Platform reserves the right to:
- a) Assign a temporary placeholder logo to the Merchant's account;
- b) Display such temporary logo until the Merchant uploads their own official logo;
- c) Remove or replace the temporary logo at any time at the Platform's discretion.
- 3.2.14 The Merchant may at any time:
- a) Replace the Platform-assigned temporary logo with their own official business logo;
- b) Request the removal of a Platform-assigned temporary logo;
- c) Update their existing logo in accordance with the Platform's technical specifications.
- 3.2.15 The Platform makes no claims of ownership over any temporary logos assigned and uses them solely for the purpose of enhancing user trust and platform security. The Merchant acknowledges that the use of a Platform-assigned temporary logo does not constitute an endorsement or verification of the Merchant's business by the Platform.
3.3 If you are a User you further represent warrant and undertake
that:
-
3.3.1 Where applicable you agree to indicate the accurate number
of passenger(s) when requesting for the SmartRide Service.
-
3.3.2 You further acknowledge and agree that if the information
on
the number of passengers is untrue or inaccurate the Partner is
entitled to cancel your booking and you may be charged a
Cancellation Fee as per the Cancellation Policy on Smartie’s
website;
-
3.3.3 You shall not contact the Partner for purposes other than
the Service applicable; and
-
3.3.4 You shall not intentionally or unintentionally cause or
attempt to cause damage to the Partner or any property of the
Partner.
4. Compatibility
Different models or versions of routers browsers and devices may
have firmware or settings that are not compatible with the
Platform
or part/s thereof. While we continuously develop the Platform and
in
order to as far as possible support all commonly used devices and
models in markets and all browsers where the Platform is likely to
be accessed from we do not warrant or guarantee compatibility of
the
Platform with specific mobile devices or other hardware.
5. License Grant and Restrictions
5.1 Smartie and its licensors where applicable grant you a
revocable
non-exclusive non- transferable limited license to use and access
the Platform to use the Service subject to the terms and
conditions
of this Agreement. All rights not expressly granted to you are
reserved by Smartie and its licensors.
5.2 You shall not:
-
5.2.1 post distribute or reproduce in any way any copyrighted
material trademarks or other proprietary information without
obtaining the prior consent of the owner of such proprietary
rights; or
-
5.2.2 remove any copyright trademark or other proprietary rights
notices contained on the Platform.
6. Payments
6.1 Payment Terms for Partners (SmartRide -
Driver-partners/Delivery-partners)
-
6.1.1 Smartie charges a fee for your use of the Service
(“Service
Fee”). The Service Fee will be determined and set from time to
time and the exact amount of the fee will be communicated to the
Partner subsequently and may be changed from time to time. If
the
Partner does not accept the given fee value to be applied then
it
will be considered that this Agreement has not been accepted or
that the Agreement has therefore been terminated. The Service
Fees
are payable by you immediately and are non-refundable. This
no-refund policy shall apply at all times regardless of your
decision to terminate your access to the Platform our decision
to
terminate or suspend your access to the Platform disruption
caused
to the Service whether planned accidental or intentional or any
reason whatsoever.
-
6.1.2 YOU ACKNOWLEDGE AND CONFIRM THAT SMARTIE MAY ADMINISTER
AND
ACT AS YOUR COLLECTION AGENT TO COLLECT THE TOTAL AMOUNT OF USER
CHARGES DUE TO YOU IN RESPECT OF YOUR PROVISION OF THE SOLUTION.
-
6.1.3 Smartie retains the right to suspend the processing of any
transaction where it reasonably believes that the transaction
may
be fraudulent illegal or involves any criminal activity or where
you and/or the User have breached any of the Terms in this
Agreement. In such an event you shall not hold Smartie liable
for
any withholding of delay in suspension forfeiture or
cancellation
of any payment/s to you.
-
6.1.4 Smartie may at its sole discretion make promotional offers
with different features and different rates on the Solutions to
any of the Users whereby these promotional offers shall
accordingly be honoured by you. Smartie may change the Service
Fee
at any time at its sole discretion.
-
6.1.5 Driver’s Cash Balance: Smartie shall administer payments
to
you and from you by way of a wallet system (the “Driver’s Cash
Balance“). Your earnings will be displayed in the Driver’s Cash
Balance in the Super App and may be withdrawn by you to your
designated bank account or where available to your Drivers
SmartPay Wallet or to such other recipient accounts as are made
available in the Super App. Smartie reserves the right to make
such deductions from the Driver’s Cash Balance as are provided
for
in these Terms and Conditions as are authorised by you or as are
notified to you via the Super App.
-
6.1.6 Driver’s Credit Balance: In addition to your Driver’s Cash
Balance you must also maintain with Smartie a Driver’s Credit
Balance. The Driver’s Credit Balance comprises a pre-payment to
Smartie by you of commissions and other fees and charges
applicable under these Terms and Conditions. You must at all
times
maintain a minimum credit balance (“Minimum Balance”) in your
Driver’s Credit Balance in order for you to use the Service. The
amount of such Minimum Balance shall be prescribed by Smartie
and
shall be notified to you via the Super App. It may be changed at
any time at Smartie’s sole discretion.
-
6.1.7 You may add funds (“Credits”) to your Driver’s Credit
Balance to fulfill the Minimum Balance requirement. The maximum
balance you may hold in the Driver’s Cash Balance at any time
will
be determined by Us in a later communication with you. Balance
may
be added in any manner prescribed by Smartie from time to time
(such as cash reload and credit/debit card payments or transfer
from your Driver Cash Balance).
-
6.1.8 Funds in the Driver’s Credit Balance are not redeemable
for
cash and cannot be refunded back to the driver-partner before
the
driver-partner ends his engagement with Smartie as a
driver-partner. They cannot be resold exchanged or transferred
for
value under any circumstances. The funds shall not be regarded
construed or used as valuable or exchangeable instruments under
any circumstances. You will not receive interest or other
earnings
on your Credits. Smartie may receive interest on amounts that
Smartie holds on your behalf. You agree to assign your rights to
Smartie for any interest derived from your Credits.
-
6.1.9 Driver’s SmartPay Wallet: Where available driver-partners
will be provided with a SmartPay stored value facility wallet.
This wallet may be used to receive funds withdrawn from the
Driver’s Cash Balance pursuant to Clause 6.1.4 above as well as
make payments remittances and transfers of funds to other Users.
Usage of your Driver’s SmartPay Wallet will be governed by the
SmartPay Terms and Conditions accessible via the
https://www.Smartie.com/terms/
website.
6.2 Payment Terms for Users:
-
6.2.1 Users are required to make full payment of the User
Charges
for all services offered in the Super App by the method selected
at the time of booking which may be cash or one of the automated
payment methods available to you on the Super App. Any payment
pursuant to such selection is non-refundable and irrevocable.
-
6.2.2 Automated payment may be made by credit card and or debit
card by SmartPay alternative e-Wallets or by any other such
methods as are made available in the Super App. The terms of
these
non-cash payments made by you through the Super App will be
governed by the SmartPay Terms and Conditions accessible via the
https://www.Smartie.com/terms/
website.
-
6.2.3 If the tipping feature is available you may have the
option
to pre-set a default “tip” amount of your choosing when you
register for the Service. This will automatically be included in
the User Charges after the Solution has been provided and given
to
the Partner unless you choose to change the amount or remove the
tip.
6.3 Offline Payment Feature
In the event that the User's mobile phone is offline for any
reason
the User will be enabled to make the payment by offering the
Partner
to scan the QR code in the User's mobile application. In order to
complete the transaction the User will be able to enter the PIN on
the Partner's SmartPay POS terminal.
6.4 SmartPayroll Feature
Partners will be able to use the SmartPayroll feature through
which
they will be able to manage payroll payments to their employees.
6.5 SmartCheckout Feature
Partners will be required to place our SmartCheckout feature on
their websites. This payment gateway will be integrated into the
Partner's web page shopping cart process and experience. Partner's
customers will be able to make a payment either from their
SmartPay
wallet balance or pay using their Credit or Debit Card.
6.6 General Terms
As a Financial Service Provider and holder or a Remittance Licence
we are regulated by the Financial Supervisory Commission (FSC) and
Financial Investigations Unit (FIU) of the Cook Islands. We are
required to always comply with any law regulation order
instruction
or direction given in order to comply with all FSC and FIU
requirements from time to time. Any act directive or omission
acted
on by our office for the purpose of complying with any formal
instructions or requests received from the FSC or the FIU will not
be considered a breach of these Terms and Conditions by Smartie.
7. Cancellation
7.1 Cancellation Terms for Partners:
-
7.1.1 Users rely on you for delivery or provision of the
Solutions. You agree that high and/or frequent cancellation
rates
or ignoring the Users’ bookings will impair the Users’
experience
and negatively impact the reputation and branding of Smartie.
-
7.1.2 While you may cancel a booking the cancellation shall be
based on acceptable cancellation reasons as shown in the Super
App. Smartie reserves the right to amend the acceptable
cancellation reasons from time to time. A cancellation that is
not
based on one of the acceptable reasons or ignoring a booking may
be counted in determining if your access to the Service will
continue or be temporarily restricted.
7.2 Cancellation Terms for Users (Transportation Solutions):
-
7.2.1 Unless otherwise stated in any Smartie Policy you may
cancel
your request for transportation services at any time before you
commence your ride with the Partner that has been matched with
you
by the Service.
-
7.2.2 If you decide to cancel your ride booking or do not show
up
at the designated location you may be charged a Cancellation Fee
or such other Cancellation Fee as Smartie may notify from time
to
time via the Cancellation Policy on Smartie’s website.
-
7.2.3 If you feel you were incorrectly charged a Cancellation
Fee
you may contact Smartie via the Help Centre on Smartie’s website
for assistance. Smartie reserves its absolute discretion to any
refunds to you and such refunds may be credited to the payment
card you used for the journey or to your SmartPay Wallet or by
such other method as is deemed reasonable by Smartie.
9. Ratings
9.1 Users and Partners may be allowed to rate each other in
respect
of Solutions provided.
9.2 Every rating will be automatically logged onto Smartie’s
system
and Smartie may analyse all ratings received. Smartie may take all
appropriate actions including suspending your use of the Service
without any notice or compensation to you.
10. Complaints
10.1 Any complaints between Partners and Users must be taken up
with
each other directly.
11. Repair and Cleaning Fees for Users
11.1 Where applicable you shall be responsible for the cost of
repairing any damage to or necessary cleaning of a Partner’s
property as a result of your misuse of the Service or breach of
the
Terms and Conditions herein. Smartie may facilitate payment for
reasonable cost of such repair or cleaning on behalf of the
Partner
via your designated payment method or demand from you in cash in
the
event a request for repair or cleaning request by the Partner has
been verified by Smartie.
12. Intellectual Property Ownership
12.1 Smartie and its licensors where applicable shall own all
right
title and interest including all related intellectual property
rights in and to the Platform and by extension the Service and any
suggestions ideas enhancement requests feedback recommendations or
other information provided by you or any other party relating to
the
Service and/or any Solution. The Terms and Conditions do not
constitute a sale agreement and do not convey to you any rights of
ownership in or related to the Service and/or the Platform or any
intellectual property rights owned by Smartie and/or its
licensors.
Smartie’s name Smartie’s logo the Service the Platform and any
third
parties’ logos and the product names associated with the Software
and/or the Platform are trademarks of Smartie or third parties and
no right or license is granted to use them. For the avoidance of
doubt the term “Platform” shall include its respective components
processes and design in its entirety.
13. Taxes
13.1 You agree that this Agreement is subject to all prevailing
statutory taxes duties fees charges and/or costs however
denominated
as may be applicable from time to time. You shall comply with all
applicable laws and take all steps required to enable assist
and/or
defend Smartie to claim or verify any input tax credit set off
rebate or refund in respect of any taxes paid or payable in
connection with the Service.
13.2 If you are a Partner you are solely responsible and
accountable
for paying any tax and statutory contributions due in respect of
sums payable to you under or in connection with this Agreement.
14. Confidentiality
14.1 You shall maintain in confidence all information and data
relating to Smartie its services products business affairs
marketing
and promotion plans or other operations and its associated
companies
which are disclosed to you by or on behalf of Smartie (whether
orally or in writing and whether before on or after the date of
this
Agreement) or which are otherwise directly or indirectly acquired
by
you from Smartie or any of its affiliate companies or created in
the
course of this Agreement. You shall further ensure that you only
use
such confidential information in order to use the Service and
shall
not without Smartie’s prior written consent disclose such
information to any third party nor use it for any other purpose.
14.2 The above obligations of confidentiality shall not apply to
the
extent that you can show that the relevant information:
-
14.2.1 was at the time of receipt already in your possession;
-
14.2.2 is or becomes in the future public knowledge through no
fault or omission on your part;
-
14.2.3 was received from a third party having the right to
disclose it; or
- 14.2.4 is required to be disclosed by law.
15. Data Privacy and Personal Data Protection Policy
15.1 Smartie collects and processes your Personal Data in
accordance
with its Privacy Policy. The Privacy Policy applies to all of
Smartie’s Services and its terms are made a part of this Agreement
by this reference.
15.2 Where applicable you agree and consent to Smartie its
subsidiaries and any of its affiliate companies collecting using
processing and disclosing Personal Data as further described in
our
Privacy Policy.
15.3 You acknowledge that Smartie may disclose Personal Data of
other individuals to you in the course of your use of Smartie’s
Services. You represent and warrant that you will only use such
Personal Data for the purpose for which it was disclosed to you by
Smartie and not for any other unauthorised purposes.
16. Third Party Interactions
16.1 During use of the Service you may enter into correspondence
or
transactions with third parties who display or offer their goods
and/or service through the Platform. Any such communication or
agreement is strictly between you and the applicable third party
and
Smartie and its licensors shall have no liability or obligation
for
any such communication or agreement. Neither Smartie nor any of
its
affiliate companies endorses any applications or sites on the
Internet that are linked through the Platform and in no event
shall
Smartie its licensors or its affiliate companies be responsible
for
any content products services or other materials on or available
from such sites or third parties. Certain third parties may
require
your agreement to additional or different terms of use and privacy
policies prior to your use of or access to such goods or services
and Smartie is not a party to and disclaims any and all
responsibility and/or liability arising from such agreements
between
you and the third parties. You acknowledge that such additional or
different terms of use and privacy policies may apply to your use
of
such third party services. Smartie is not liable for any
information
that you provide to or authorise us to provide to a third party or
for such third party’s collection use and disclosure of such
information.
16.2 Smartie may rely on third party advertising and marketing
supplied through the Service and other mechanisms to subsidise the
Service and/or to earn additional revenue. If you do not wish to
receive such advertising and marketing please refer to our Privacy
Policy for instructions to unsubscribe or update your privacy
settings.
16.3 You agree and allow Smartie to compile and release
information
regarding you and your use of the Service on an anonymous basis as
part of a user profile or similar report or analysis. You agree
that
it is your responsibility to take all precautions in all actions
and
interactions with any third party you interact with through the
Service Platform and/or advertising or marketing material supplied
by third parties through the Service.
16.4 We may include hyperlinks to other websites or content on the
Internet that are owned or operated by third parties (“Third Party
Links“). Such Third Party Links are not under our control and we
are
not liable for any errors omissions delays defamation libel
slander
falsehood obscenity pornography profanity inaccuracy or any other
objectionable material contained in the content or the
consequences
of accessing any linked website. Any hyperlinks to any other
websites or content are not an endorsement or verification of such
websites or content and you agree that your access to or use of
such
linked websites or content is entirely at your own risk.
16.5 You acknowledge that the Platform utilises and modifies
search
results from Google Maps services and content and that by using
the
Platform you agree to comply with:
-
16.5.1 copy modify create a derivative work of reverse engineer
decompile translate disassemble or otherwise attempt to extract
any of the source code of Google Maps;
- 16.5.2 sublicense transfer or distribute Google Maps;
-
16.5.3 sell resell or otherwise make Google Map available to a
third party as part of a commercial offering that does not have
material value independent of Google Maps; or
-
16.5.4 access or use Google Maps in a manner that is illegal or
which is likely to result in a circumvention of any fees payable
to Google.
16.6 Save for factual truthful and not misleading references
through
a plain text link to
http://www.Smartie.com or
URL(s) which Smartie may specifically provide you with any linking
to the Platform or any part thereof is strictly prohibited in the
absence of prior approval by Smartie. Notwithstanding any other
provisions any website software platform or other device that
links
to the Platform or any part thereof is prohibited from:
- (a) replicating any Platform Content;
-
(b) using a browser or border environment around the Platform
Content;
-
(c) implying in any fashion that Smartie is endorsing it or its
products or services;
-
(d) misrepresenting any state of facts including its
relationship
with Smartie;
-
(e) presenting false information about products or services of
Smartie; and
-
(f) using any logo or mark of Smartie without prior written
approval from Smartie.
17. Indemnification
17.1 By agreeing to the Terms and Conditions upon using the
Service
or accessing the Platform you agree that you shall indemnify and
hold Smartie its licensors and each such party’s affiliates
officers
directors members employees attorneys and agents harmless from and
against any and all claims costs damages losses liabilities and
expenses (including attorneys’ fees and costs and/or regulatory
action) arising out of or in connection with:
-
(a) your use of the Service the Platform and/or any part thereof
in your dealings with the Partners or Users (as the case may be)
third party merchants providers partners advertisers and/or
sponsors or
-
(b) your violation or breach of any of the Terms and Conditions
any third-party terms and conditions or any applicable law or
regulation whether or not referenced herein or
-
(c) your violation of any rights of any third party including
Partners or Users arranged via the Service or
-
(d) your use or misuse of the Service the Platform and/or any
part
thereof or
-
(e) where applicable your ownership use or operation of any
property including your provision of Solutions to Users via the
Service.
18. Disclaimer of Warranties
18.1 Smartie makes no representation warranty or guarantee as to
the
reliability timeliness quality suitability availability accuracy
or
completeness of the Service Software Super App or Platform.
Smartie
does not represent or warrant that:
-
(a) the use of the Service Software Super App or Platform will
be
secure uninterrupted free of errors or other harmful components
or
operate in combination with any other hardware software system
or
data;
- (b) will meet your requirements or expectations;
- (c) any stored data will be accurate or reliable or
-
(d) the quality of any products services information or other
materials purchased or obtained by you through the Platform will
meet your requirements or expectations. The Service and the
Platform are provided to you strictly on an “as is” basis. All
conditions representations and warranties including any implied
warranty of merchantability fitness for a particular purpose or
non-infringement of third party rights are hereby excluded to
the
extent permissible by law.
18.2 Smartie makes no representation or warranty of any kind
whatsoever express or implied in respect of Solutions provided by
Partners or any Solutions procured through the use of the Service.
You agree that you shall bear all risk arising out of your use of
the Service and any Solution provided by Partners and shall have
no
recourse to Smartie in respect of the same.
18.3 Where applicable Smartie’s role as collection agent is solely
mechanical and administrative in nature and Smartie does not owe
to
you a duty of care or any fiduciary duties.
19. Internet Delays
THE SERVICE PLATFORM SUPER APP AND/OR THE SOFTWARE MAY BE SUBJECT
TO
LIMITATIONS DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE
INTERNET AND ELECTRONIC COMMUNICATIONS INCLUDING THE DEVICE USED
BY
YOU OR THE PARTNER BEING FAULTY NOT CONNECTED OUT OF RANGE
SWITCHED
OFF OR NOT FUNCTIONING. SMARTIE IS NOT RESPONSIBLE FOR ANY DELAYS
DELIVERY FAILURES DAMAGES OR LOSSES RESULTING FROM SUCH PROBLEMS.
21. Limitation of Liability
21.1 UNLESS OTHERWISE STATED AND TO THE FULLEST EXTENT ALLOWED BY
LAW ANY CLAIMS AGAINST SMARTIE BY YOU SHALL BE LIMITED TO THE
AGGREGATE AMOUNT OF ALL AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM
YOU
IN UTILISING THE SERVICE DURING THE EVENT GIVING RISE TO SUCH
CLAIMS. SMARTIE AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY
LOSS DAMAGE OR INJURY WHICH MAY BE INCURRED BY OR CAUSED TO YOU OR
TO ANY PERSON FOR WHOM YOU HAVE BOOKED THE SERVICE OR SOLUTION
INCLUDING BUT NOT LIMITED TO:
-
21.1.1 LOSS DAMAGE OR INJURY ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE SERVICE THE PLATFORM SUPER APP AND/OR THE
SOFTWARE;
-
21.1.2 THE USE OR INABILITY TO USE THE SERVICE THE PLATFORM
SUPER
APP AND/OR THE SOFTWARE;
-
21.1.3 ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS ACCURACY
OR
EXISTENCE OF ANY ADVERTISING; OR
-
21.1.4 AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN
YOU
AND ANY USER PARTNER MERCHANT ADVERTISER OR SPONSOR WHOSE
ADVERTISING APPEARS ON THE PLATFORM OR IS REFERRED TO BY THE
SERVICE AND/OR THE PLATFORM EVEN IF SMARTIE AND/OR ITS LICENSORS
HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.2 SMARTIE DOES NOT WARRANT OR REPRESENT THAT IT ASSESSES OR
MONITORS THE SUITABILITY LEGALITY ABILITY MOVEMENT OR LOCATION OF
ANY USERS OR PARTNERS INCLUDING MERCHANTS ADVERTISERS AND/OR
SPONSORS AND YOU EXPRESSLY WAIVE AND RELEASE SMARTIE FROM ANY AND
ALL LIABILITY CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED
TO THE USERS OR PARTNERS INCLUDING MERCHANTS ADVERTISERS AND/OR
SPONSORS.
21.3 SMARTIE WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF
DISPUTES BETWEEN YOU AND USERS OR PARTNERS INCLUDING MERCHANTS
ADVERTISERS AND/OR SPONSORS. UNLESS YOU ARE A CORPORATE USER WITH
A
CURRENT CORPORATE ACCOUNT WITH SMARTIE SMARTIE CANNOT AND WILL NOT
PLAY ANY ROLE IN MANAGING PAYMENTS BETWEEN YOU AND THE PARTNERS
INCLUDING MERCHANTS ADVERTISERS AND/OR SPONSORS. RESPONSIBILITY
FOR
THE DECISIONS YOU MAKE REGARDING SERVICES AND PRODUCTS OFFERED VIA
THE SERVICE AND/OR THE PLATFORM (WITH ALL ITS IMPLICATIONS) RESTS
SOLELY WITH AND ON YOU. YOU EXPRESSLY WAIVE AND RELEASE SMARTIE
FROM
ANY AND ALL LIABILITY CLAIMS CAUSES OF ACTION OR DAMAGES ARISING
FROM YOUR USE OF THE SERVICE AND/OR THE PLATFORM OR IN ANY WAY
RELATED TO THE THIRD PARTIES INCLUDING MERCHANTS ADVERTISERS
AND/OR
SPONSORS INTRODUCED TO YOU BY THE SERVICE AND/OR THE PLATFORM.
21.4 THE QUALITY OF THE SOLUTIONS SCHEDULED THROUGH THE USE OF THE
SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE PARTNER WHO
ULTIMATELY
PROVIDES SUCH SOLUTION TO THE USER. YOU UNDERSTAND THEREFORE THAT
BY
USING THE SERVICE YOU MAY BE EXPOSED TO SOLUTIONS THAT ARE
POTENTIALLY DANGEROUS OFFENSIVE HARMFUL TO MINORS UNSAFE OR
OTHERWISE OBJECTIONABLE AND THAT YOU USE THE SERVICE AT YOUR OWN
RISK.
22. Notice
22.1 Smartie may give notice through the Platform electronic mail
to
your email address held in the records of Smartie or by written
communication sent by registered mail or pre-paid post to your
address as held in the records of Smartie. Such notice shall be
deemed to have been given upon the expiration of 48 hours after
mailing or posting (if sent by registered mail or pre-paid post)
or
1 hour after sending (if sent by email). You may give notice to
Smartie (such notice shall be deemed given when received by
Smartie)
by letter sent by courier or registered mail to Smartie using the
contact details as provided in the Platform.
23. Assignment
23.1 Unless otherwise stated herein these Terms and Conditions as
modified from time to time may not be assigned by you without the
prior written approval of Smartie but may be assigned without your
consent by Smartie. Any purported assignment by you in violation
of
this section shall be void.
24. Governing law
24.1 These Terms and Conditions shall be governed by the laws of
the
Cook Islands without regard to the choice or conflicts of law
provisions of any other jurisdiction.
25. Relationship
25.1 Nothing contained in these Terms and Conditions shall be
construed as creating any agency partnership or other form of
joint
enterprise with Smartie.
26. Severability
26.1 If any provision of the Terms and Conditions is held to be
invalid or unenforceable the legality validity and enforceability
of
the remaining provisions shall not be affected or impaired.
27. No Waiver
27.1 The failure of Smartie to enforce any right or provision in
the
Terms and Conditions shall not constitute a waiver of such right
or
provision.
28. Platform Fees
27.1 User payments are completely free on Smartie.
27.2 Merchants have a small NZD $0.25 fee per transaction received.
29. Entire Agreement
29.1 This Agreement comprises the entire agreement between you and
Smartie in relation to the matters stated herein and supersedes
any
prior or contemporaneous negotiations or discussions save where
mutually agreed otherwise. For the avoidance of doubt where you
have
entered into a separate written agreement with Smartie which
incorporates a reference to these Terms and Conditions these Terms
and Conditions shall be applicable in addition to the said written
agreement. In the event there are inconsistencies between these
Terms and Conditions and the separate written agreement you agree
to
work with Smartie in good faith to resolve the conflicts or
inconsistencies. Certain services made available on the Platform
may
be subject to additional terms and conditions which will be
communicated to you.
30. Suspension and Termination; Modification of Platform Content
30.1 You agree that we may do any of the following at any time
without notice:
-
(i) modify suspend or terminate operation of or access to the
Platform or any portion of the Platform (including access to
your
account and/or the availability of any products or services) for
any reason;
- (ii) modify or change any applicable policies or terms;
and
-
(iii) interrupt the operation of the Platform or any portion of
the Platform (including access to your account and/or the
availability of any products or services) as necessary to
perform
routine or non-routine maintenance error correction or other
changes.
We shall not be required to compensate you for any modification
suspension or termination.
30.2 Without prejudice to any other provisions we may vary modify
or
remove Platform content without notice (including without
limitation
information relating to the availability of a product or service
product or service descriptions pricing promotions offers product
shipping charges and transit time). In the event any Platform
Content contains any typographical errors inaccuracies omissions
or
otherwise violates Smartie Policies we reserve the right to (but
shall not be obliged to save to the extent where mandated by
applicable laws) carry out any such measures as Smartie deems
appropriate (collectively “Rectification Measure”) including
without
limitation:
- (i) correcting the said errors inaccuracies or omissions
- (ii) changing or updating information; and/or
-
(iii) where applicable cancelling the affected orders at any
time
without prior notice (including without limitation after an
order
has been submitted).
31. Device Ownership and Maintenance
31.1 Ownership Transfer: Any device issued by Smartie to a
Merchant
for the purpose of using the Smartie services shall remain the
property of Smartie until the full cost of the device is paid off
by
the Merchant. Once the Merchant has fully paid for the device
ownership of the device will be transferred to the Merchant.
31.2 Maintenance Responsibility: The Merchant shall be solely
responsible for the maintenance repair and proper functioning of
the
device. Smartie shall not be liable for any damages defects or
issues related to the device after it has been issued to the
Merchant.
31.3 Damage Before Full Payment: If the device is damaged before
the
Merchant has paid off the device in full the Merchant will be
required to pay the remaining balance owed to Smartie. The amount
due will be calculated based on the original cost of the device
minus any payments already made.
32. Liability for Rewards and Prizes
32.1 Merchant Responsibility: Any rewards prizes or promotional
offers provided by Merchants through the Smartie platform are
solely
the responsibility of the respective Merchant.
32.2 Disclaimer of Liability: Smartie shall not be held liable for
any issues disputes or problems arising from the rewards prizes or
promotional offers made by Merchants. Users are advised to
directly
contact the respective Merchant in case of any grievances or
issues
related to such rewards or prizes.