Terms and Conditions of Use of Associate Service System
(“Terms of Associate Services”)
The Associate details of which are set out in Sales Contract to these Terms of Associate Services.
This Service is owned, operated, run and powered by Kalamansee Limited.
These terms and conditions are the terms of Associate Services governing the Associates use of the Associate Service System ( the“System”).
Where we refer to "Kalamansee", "we", "us" and "our" we mean Kalamansee Limited, its group companies, susidiaries and assigns and each of our and their respective officers, directors, members, employees, sub-contractors, agents, and representatives.
Where we refer to "you" and "your" this means or relates to you the Associate User.
The Channels (as defined below) are owned operated and powered by Kalamansee.
The Associate wants to upload loyalty points and gifts awarded and make them available to members of its Loyalty Programs on the Channels and to upload a page to be included in the directory giving information about itself and services.
The Associate wants its Loyalty Programs in so far as it is uploaded onto the Channels, to be administered.
The Associates Loyalty Programs uploaded on to the Channels will consist of the points, awards and gifts available to its members.
The Associate wants an analysis of its members use of its Loyalty Programs and its effectiveness to be carried out.
Kalamansee will administer and maintain the details of the Associates Loyalty Programs uploaded onto its Channels.
Kalamansee will carry out an analytical review of the members use of the Associates Loyalty Programs and its effectiveness.
The relevant information uploaded by Associate using the System will be published on Kalamansee mobile applications (hereinafter collectively or singly referred to as the “Application(s)”) and on Kalamansee Platform, (hereinafter singly or collectively referred to as “Platform(s)”). The Application(s) and the Platform(s) may be hereinafter singly or collectively referred to as “Channel(s).
By Signing this agreement (‘’ the Agreement”) the parties agree to be bound by the following terms and conditions.
You understand and agree that we may add to or change these terms and conditions at any time. New terms and conditions are effective immediately upon posting to the Service. Your continued use of the Service shall constitute on-going acceptance of these terms and conditions, as updated from time-to-time. We therefore recommend that you check the Service regularly.
Kalamansee’s provision of a non-exclusive, revocable, non-sublicensable and non-transferrable right to use the software programs, functionalities, processing and technologies of the System, together in each case with any related services and materials which Kalamansee makes available are hereinafter referred to as the “Associate Services”.
Kalamansee may offer additional features and functionalities for the Associate (“Additional Solutions”) via the System. The use of any of the Additional Solutions will also be subject to the Agreement (and in particular, the Terms of Associate Services) and may require the Associate to agree to additional terms and conditions specific to those Additional Solutions which may be incorporated into the Agreement.
The Associate Services will subsist until the end of the service period or until this agreement is terminated in accordance with the terms hereof, whichever is earlier (the "Term").
1. Provision of the Associate Services
The Associate Services provided by Kalamansee shall only be used by the Associate during the Term.
The Associate undertakes that it shall comply, and shall procure each of its employees, agents and contractors (collectively “Related Parties”)) will comply with the terms and conditions of the Agreement. The Associate shall be fully responsible for any breach of any term or condition of the Agreement by the Associate or the Related Parties.
The Associate agrees that Kalamansee shall have the exclusive right to substitute, remove, modify, enhance or upgrade part or all of the components and modules of the System at any time at its absolute discretion without any notice to the Associate and the Associate shall have no right to object to such substitutions, removals, modifications, enhancements and/or upgrades made to the System provided that:
Kalamansee gives to the Associate reasonable notice of any changes that may materially affect the normal use of the System; and
such substitutions, removals, modifications, enhancements and/or upgrades will not deprive the Associate of the standard features and functionalities of the System as at the commencement date of its use of the Channels.
Kalamansee will use its reasonable efforts to ensure that sufficient capacity is maintained on its Server facilities to enable:
- the Associate to use and access the System; and
- Members of the Associate’s Loyalty Programs to access the Channels.
Kalamansee may at its own absolute discretion during any period of time:
carry out scheduled maintenance and non-scheduled maintenance of the System and the Channels; and
provide and carry out daily backup of the data collected and maintained by Kalamansee solely for the Associate (“Database”).
2. The Associate’s Facilities
- The Associate shall be solely responsible for the provision of its and its own internal facilities (including but not limited to terminal, mobile device, software, electricity, modem and internet connection, telecommunications facilities and hardware) (hereinafter collectively referred to as “Access Facilities”) necessary for utilizing any of the relevant Associate Services and/or the System.
- Kalamansee accepts no responsibility for any deficiency in or malfunction or the maintenance of the Associate’s Access Facilities.
3. The Associate’s Representations, General Obligations and Responsibilities
- The Associate represents and warrants that:
1. it is an independent corporation duly organized, validly existing and in good standing under the laws of jurisdiction of its incorporation;
2. it is properly registered to do business in all jurisdictions in which it carries on business;
3. it has the corporate power, authority and legal right to execute and perform the Agreement and to carry out the transactions and its obligations contemplated hereunder;
4. its consummation of the Agreement will not conflict with any of its corporate or constitutional documents or violate any applicable law;
5. there is no litigation, proceeding or investigation of any nature pending or, to its knowledge, threatened against or affecting it, which would reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Agreement; and
6. any materials provided by the Associate to Kalamansee or uploaded with the System and any products or services sold by the Associate do not infringe any third party’s rights and interests.
- The Associate will promptly inform Kalamansee of any action or event of which it becomes aware that has the effect of making materially inaccurate, any of the Associate’s representations or warranties as set out in Clause 3.1 above.
- The Associate shall ensure that only the Authorized User(s) who have been properly trained may log into the System and that the Authorized User(s) shall use the System in accordance with the service guidelines as may be provided by Kalamansee from time to time during the Term.
- The Associate shall maintain and procure all Related Parties to maintain the confidentiality of the username (“Username”) and password (“Password”) required to access the System.
- The Associate is solely responsible for any use of action taken and transactions that occur under the Username and the Password.
- The Associate shall fully comply with the Trade Descriptions Ordinance (Cap. 362 of the laws of Hong Kong) and all other applicable laws to ensure that the information/content uploaded to the System is true, legal, valid, up-to-date, accurate, not misleading and not infringing any third party’s intellectual property rights.
- The Associate shall provide and fulfil the terms of their services/products and/or the terms their Loyalty Programs including but not limited to honouring their point systems, gifts and awards which shall be/are uploaded to the System for publishing on the Channels in accordance with the terms of the Agreement and the Associate shall be solely responsible for and bear all risks relating to their Loyalty Programs.
- The Associate is responsible for the imposition of any terms and conditions on any redemption of points, gifts and/or awards including quality, safety, usability or any aspect of the products and/or services provided by the Associate that violates any applicable laws or regulations.
- The associate shall not upload or submit to the System any unlawful or inappropriate content or any other item prohibited by any applicable law.
- The Associate agrees that Kalamansee shall have the right to pre-screen and approve the content of any gifts, awards, items redeemable using points and materials provided to the System before they are published on any Channel. Kalamansee shall have the rights to pre-screen, refuse and/or remove from the System and/or the Channels any content that violates any term of the Terms and Conditions or the Agreement or any applicable laws or regulations.
- The Associate shall promptly notify Kalamansee of any malfunction, error or defect in the System and provide Kalamansee with a list of output and any other data that Kalamansee may request in order to reproduce conditions similar to those present when such error, defect or malfunction occurred.
- The Associate shall maintain procedures to facilitate the reconstruction of any lost or altered files, data or computer software, and the Associate agrees that to the fullest extent permissible under the law, Kalamansee will not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs.
- Kalamansee may, from time to time, in accordance with the applicable laws, provide personal data of Users, such as name and/or telephone number (“Personal Data”) to the Associate (based on the Associate Services which the Associates have subscribed for) for the purposes of enabling the Associate to arrange and deliver awards and/or gifts which have been offered by the Associate through the Channels and/or to conduct operation and business analysis aiming to provide better services to such Users.
The Associate shall at all times properly protect all Personal Data provided by Kalamansee or otherwise collected through the System or the Associate Services in accordance with the applicable laws and shall at all times comply with the requirements of the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) and similar applicable laws or regulations of other countries where the Associate may be located or are otherwise subject to. The Associate shall use its best endeavours to ensure that the Personal Data is protected against misuse, loss or unauthorized access, modification or disclosure and shall make sure that the Personal Data is only accessible by staff members of the Associate and Kalamansee on a need-to-know and confidential basis for the aforesaid purposes.
- The Associate agrees that Kalamansee may disclose or publish the name, address(es) and telephone number(s) of the Associate, and materials which are not of a confidential nature provided by the Associates for promoting the Associate Services.
- The Associate agrees to use its best effort to display the promotional materials, such as tent card, leaflet, sticker etc., provided by Kalamansee for promoting the Associate Services.
- The Associate shall not resell or assign, subcontract or attempt to resell or assign or subcontract the Associate Services to any parties without the prior written consent of Kalamansee.
- The Associate shall not alter, reproduce, adapt, distribute, publish, reverse engineer, compile or attempt to create any source code that is derived from the System.
- Notwithstanding anything else in these terms and conditions, you agree not to use the Services :
- in any way that breaches any applicable local, national or international law or regulation;
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- for the purpose of harming or attempting to harm minors in any way;
- to send, knowingly receive, upload, submit download, use or re-use any material which does not comply with our Acceptable Content Policy below;
- to use any personal data of the users retrieved from the “System” to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
- to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, cancelbot, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or
- to copy, harvest, crawl, index, scrape, spider, mine, gather, extract, compile, obtain, aggregate, capture, or store any Content, including without limitation photos, images, text, music, audio, videos, podcasts, data, software, source or object code, algorithms, statistics, analysis, formulas, indexes, registries, repositories, or any other information available on or through the Service, including by an automated or manual process or otherwise.
- Other than connecting to Kalamansee’s servers by HTTP requests using a web browser, you may not attempt to gain access to Kalamansee’s Platforms, Channels or Servers by any means, including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Service or otherwise.
- You agree not to disrupt, modify or interfere with the Service or its associated software, hardware and Platforms, Channels or Servers in any way, and you agree not to impede or interfere with others' use of the Associate Services and Channels.
- To the extent the Associate Services includes a download of software such as an Application, you agree not to (and not to attempt to or encourage others to):
1. use the software or Application for any use or purpose other than as expressly permitted by these terms and conditions; or
2. copy, adapt, modify, reverse engineer, decompile disassemble, otherwise tamper with, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the software or Application or any portion of the software or Application, except as expressly permitted in these terms and conditions.
- We reserve the right to, but undertake no duty to, review, edit, move or delete any UGC in our sole discretion and without notice.
- You are solely responsible for your UGC and may be held liable for UGC that you post. In this regard, you agree that you will comply with the following Acceptable Content Policy and not submit UGC that:
(i) you do not own or have the rights to submit or that is illegal.
(ii) promotes any form of illegal activity including (by way of example) hacking, drug taking, terrorism, cracking or distribution of counterfeit software.
(iii) imposes an unreasonable or disproportionately large load on the Service's, Channels, Platform, infrastructure, or otherwise adversely affects, restricts or inhibits any other user from using and enjoying the Service.
4. Force Majeure
- “Force Majeure Event” means act of God, war, act of foreign enemies, terrorists attack, riot, civil commotion, strike, lockout, other labour disturbance (including those involving or affecting Kalamansee) or any other circumstances beyond the reasonable control of Kalamansee.
- Kalamansee shall in no event be liable for any delay or failure to provide any Associates Services pursuant to any terms of this Agreement due to a Force Majeure Event.
- If a delay or failure of Kalamansee to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of Kalamansee’s obligations will be suspended accordingly.
5. Intellectual Property Rights
- The intellectual property rights in the System and all the Channels (“Company IP Rights”) including without limitation:
(i) any material (including but not limited to Kalamansee’s software, documentation, templates, data, design, element graphics, formatting or CGIs) which is incorporated into or which has been used in the course of developing or operating the System and the Channels; and
(ii) the user interface of the Channels and the System shall vest in Kalamansee.
- Without prejudice to Clause 5.1 above, the intellectual property rights in any data, logo, design, graphic and/or any other related materials (“Information”) owned and provided by the Associate shall vest in the Associate.
- The Associate undertakes that he/she shall not directly or indirectly infringe nor permit its Related Parties to infringe Kalamansee’s IP Rights under any circumstances.
- Without prejudice to the other provisions under this Clause 5, the Associate further warrants and undertakes that the Information supplied to Kalamansee hereunder or in connection herewith for use in the System and/or the Channels does not and shall not infringe any intellectual property rights and any other right of any third party (including but not limited to any registered or unregistered trademark, patent, copyright or design).
- The Associate agrees not to remove, obscure, or alter any copyright, patent, trade mark, or other proprietary rights notices appearing on the Channels. You may not sell, license, distribute, copy, modify, or display, transmit, publish, edit, adapt, or create derivative works from items.
- Making unauthorised copies of Content found on this Server, Platform, Channel and/or Associates Services may result in the prohibition of your use of the Server, Platform, Channel, Application and/or Associates Services and further legal action.
- Kalamansee respects the intellectual property and other rights of others, and we ask our Associates to do the same. We may, in appropriate circumstances and at our discretion, terminate the access of Associates and/or others who infringe the rights of others.
- Copyright: If you believe that your work has been copied and is accessible on the Server, Platform, Application or Channel in a way that constitutes copyright infringement, or that the Server, Platform, Application and/or Channel contains links or other references to another online location that contains material or activity that infringes your copyright, please notify Kalamansee.
- The Associate, Kalamansee and their respective related parties shall keep confidential and not make use of any information and data of a confidential nature of the other party or treated as confidential by the other party, including without limitation information related to this Agreement and the Platform, Server, Application, System, developmental, technical, product, sales, marketing, promotional, operating, performance, cost, policy, financial, business, process and other proprietary information, trade secrets, know-how, customers and, customer information of the other party (“Confidential Information”) and shall procure its officers, employees, agents and sub-contractors to keep such information confidential, save for the purposes of and only to the extent necessary for the due performance of the receiving party’s obligations under the Agreement.
- A party shall not be in breach of Clause 6.1 above in circumstances where it is compelled by any applicable laws, regulations or orders given by any court, government authority or regulatory body of competent jurisdiction or otherwise required by any relevant financial institutions in connection with the performance of or any transactions contemplated under the Agreement to disclose the other party’s Confidential Information.
- Notwithstanding any other provision of this Clause 6, Kalamansee and the Associate may disclose any Confidential Information of the other party to its related companies, solicitors, auditors, insurers or accountants on a need-to-know basis and shall procure that such related companies, solicitors, auditors, insurers or accountants shall thereafter be under a duty of confidentiality.
7. Content Licence
- The Associate grants Kalamansee a non-exclusive, worldwide, royalty-free, perpetual right and license to use, publish, host, display, adapt, modify, promote, copy, download, sub-license, forward, distribute, reproduce, transfer and/or edit materials and content provided to Kalamansee and/or uploaded to the System for use in the Channels related to the Associates Services, including without limitation, for marketing, promoting and redistributing and using such information for analytics in any media as Kalamansee deems appropriate.
8. Liability of Kalamansee
- Nothing in the Agreement shall operate to exclude or restrict any party’s liability for death or personal injury resulting from negligence or fraud.
- Subject to Clause 8.1 above and to the fullest extent permitted by law, Kalamansee shall not be liable to the Associate or its Related Parties in respect of any loss, damage, claim, demand or action (including direct or indirect, special, economic or consequential loss or damage or loss of revenue, profit, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings) which may be suffered or incurred or which may arise directly or indirectly in respect of Kalamansee’s performance of the Agreement or any activity contemplated by the Agreement whether for breach of contract, tort (including without limitation negligence) or under any statutes or otherwise and whether or not Kalamansee was made aware of the possibility of such loss, damage, claim, demand or action or should have been aware of that possibility.
- Notwithstanding anything to the contrary in the Agreement, to the fullest extent permitted by law, the aggregate liability of Kalamansee, including for claims, expenses, damages or obligations, under or in relation to the provision of the Associate Services, the Agreement, the performance of the Agreement or any activity contemplated by the Agreement, whether for breach of contract, tort or under any statute or otherwise in any calendar year shall in no event exceed the total fees paid by the Associate to the Company in that calendar year.
- The Associate confirms that it has not relied on any representation made by Kalamansee which has not been stated expressly in the Agreement or upon any descriptions, illustrations or specifications contained in any document, including without limitation catalogues or publicity matter produced by Kalamansee.
- To the fullest extent permitted by law, Kalamansee shall not be liable for any loss, claim, damage, demand or action directly or indirectly arising out of any Users’ use of services and/or products provided by the Associate(s) and/or the Platform, Application and/or the Channels, nor liable or responsible for or be obliged to get involved in any disputes between the Associate and any parties arising out of or in the connection with the use of any Associates Services and/or the sale of any goods or services or redemption of any gifts, points, or awards under the Associates Loyalty Programs.
9. Waiver and Complete Agreement
The failure of Kalamansee to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and Kalamansee and govern your use of the Service, superseding any prior agreements between you and Kalamansee (including, but not limited to, any prior versions of the Terms of Service).
- Associate shall at all times indemnify and hold harmless Kalamansee and its officers, employees, agents and contractors from and against any loss (including legal costs and expenses), damage, settlement, claim or liability incurred or suffered as a result of:
1. a breach by the Associate of any obligations under the Agreement;
2. any willful, unlawful or negligent act or omission of the Associate or its Related Parties;
3. any breach or inaccuracy in any of the Associates’s representations, undertakings or warranties under the Agreement;
4. the Associate or the Related Parties’ negligence or willful misconduct; or
5. any action, complaint, liability or claim, including claims for personal injury, sickness, death or property damage, brought by (i) any party in connection with his/her use of any Loyalty Programs, redemption points, gifts, offers, and/or any other service made available on the Channels through the Associate and/or use of the Associates Services and/or Loyalty Programs or arising from his/her consumption of any service or goods from the Associates; or (ii) any party which relates to all or any part of the Information, including but not limited to leakage of information from the Database or any infringement of intellectual property rights, defamation or misappropriation of trade secrets caused by any act of the Associate or any of the Related Parties.
- The Associate acknowledges that the Associate Services are computer network based services which may be subject to outages and delay occurrence. As such, Kalamansee does not warrant that the Associate Services, the System and the Channels will be uninterrupted or error-free.
- Kalamansee does not accept any responsibilities or liabilities, whatsoever for any network problems, system or hardware failures, mobile telephone connection problems or interferences due to third party applications or system or hardware which may result in the Associate Services being affected or unavailable.
- Kalamansee does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
- Kalamansee does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
- The System and the Channels, including all content, software, functions and modules in connection with the Associates Services are provided “as-is” (subject to any substitutions, removals, modification, enhancements and upgrades that Kalamansee may make from time to time) without any warranties of any kind. To the fullest extent permitted by law, Kalamansee disclaims all warranties, including any warranties regarding merchantability, non-infringement of third party rights, fitness for particular purpose or about the accuracy, reliability, completeness or timeliness of the System and the Channels. The Associate hereby agrees to assume the entire risk as to the quality and performance of the Associate Services and that Kalamansee shall not be liable if the System and/ or the Channels are or is unavailable to the Associate, or members of the Associates Loyalty Program and/or users System or the Channels for whatsoever reason.
12. Payment of Fees
- You will pay the Fees applicable to your Loyalty Program and Marketing Campaign (“Loyalty Programs Fees”), and any fees relating to your use of the Platform and Channels as set out in Schedule 1 (together herein after referred to as the “Fees”).
- You must keep a valid Direct Debit on file with us to pay for all incurred and recurring Fees. Kalamansee will charge applicable Fees to the bank account that you authorize (“Authorized Bank Account”), and Kalamansee will continue to charge the Authorized Bank (or any replacement account) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full.
- Fees are paid in Hong Kong Dollars HK$ and will be billed on the 1st day of the month for the previous month (each such date, a "Billing Date"). You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. An invoice will appear on the Account page of your Kalamansee administration console. Associates have 14 days from the date of the invoice to bring up and settle any issues with the billing of Fees.
13. Administration and Analytics of your Loyalty Programs
- Kalamansee will carry out the administration on the Kalamansee Application of your uploaded Loyalty Programs (the “Associate Loyalty Programs”)
- Such administration will include and be limited to the following:
1. awarding points to Members as authorised by you;
2. recording the redemption of points by Members as authorised by you;
3. recording the award of gifts as authorised by you;
4. recording gifts redeemed as authorised by you
5. Recording and Displaying (i) to (iv) above on your Members sheet on the Kalamansee Application.
Carrying out Analytics on your Loyalty Programs
- Such analytics will include and be limited to analysing the Members
1. use of points;
2. redemption of gifts and awards
3. referral of gifts and awards
- Kalamansee will supply you with the non- personal data so collected and its analysis.
14. Cancellation and Termination
- Your Account is for a 12 month term commencing on the date of this agreement. This agreement will automatically renew at the end of each term for a further term of 12 months unless you give written notice of termination at least 30 days prior to the end of the relevant term. You will carry out any specific instructions in Kalamansee’s response.
- Upon termination of the Associate Services by either party for any reason:
1. Kalamanee will cease providing you with the Associate Services and you will no longer be able to access your Account;
2. unless otherwise provided in the terms and conditions of this agreement, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
3. any outstanding balance owed to Kalamansee for your use of the Associate Services until the effective date of such termination will immediately become due and payable in full; and
4. your Loyalty Programs will be taken offline;
5. Kalamansee will not administer the Loyalty Programs or analyse it further;
6. Your Associate Loyalty Programs will be cancelled;
7. The points, awards and gifts have no intrinsic value;
8. Kalamansee will not be liable for any loss arising out of such cancellation to you or Members and you will indemnify and hold harmless Kalamansee against any claim made by any Member of your Loyalty Programs;
9. Your name and details will be deleted from our Applicationss, Platform and Channels
- Following termination, it will be your sole responsibility to handle all matters related to your Loyalty Programs.
- If at the date of termination of the Associate Service, there are any outstanding Fees owed by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
- We reserve the right to modify your Associate Service or your Account for any reason, without notice at any time.
- Fraud: Without limiting any other remedies, Kalamansee may suspend or terminate your Associate status and Loyalty Programs if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Channels or Platform.
- Without prejudice to any other rights which Kalamansee shall/ may have under the Agreement or at law or in equity, Kalamansee may terminate the Agreement (i) for any reason, by giving 2 months’ advance notice in writing to the Associate; or (ii) immediately by notice in writing to the Associate if the associate is in breach of any term of the Agreement and that if such breach is capable of being remedied, such breach is not remedied within fourteen (14) days of it being notified by Kalamansee.