These terms and conditions (“Agreement”) are the legally binding terms and conditions between (1) Finberty Private Limited (“Finberty”), a company incorporated in Singapore; and (2) the party being a personal user (“Personal User”) or a licensed financial advisor, retailer, commercial or other registered or organised entity (“Member”) (collectively, “you” or its derivatives), governing the access to or use of (“use” or its derivatives) Finberty’s website, the Finberty mobile application and any services offered by Finberty (collectively, the “Services”). By registering with Finberty, 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.
1. License.
Finberty offers you a revocable, non-transferable, non-exclusive and limited license to use the Services, upon the terms and conditions of this Agreement.
2. Conditions
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 member programs made available by members through the Services (“member Programs”), and for the avoidance of doubt, Finberty does not endorse or make any representation or warranty, express or implied, in respect of any member or member Program and disclaims any responsibility in respect of any terms and conditions of any member Program; (iv) shall be solely responsible for assessing and agreeing with the terms and conditions of any member Program and communicating with any member in respect of any matter or dispute relating to any member Program; (v) shall use the Services only for its personal and non-commercial purposes, always as intended, described or implied by Finberty, 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 Finberty or the Services; and (vi) authorises Finberty to disclose any information provided by the Personal User under the Services to any member with whom the Personal User is, or is applying to be, registered in respect of any member Program.
B. Members. The Member: (i) shall use the Services only for its own business purposes, strictly in accordance with its applicable subscription plan with Finberty (“Subscription Plan”) or as otherwise expressly agreed in writing by Finberty under any applicable member agreement between the member and Finberty (“Member Agreement”), always as intended, described or implied by Finberty, 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 Finberty or the Services; (ii) authorises Finberty to disclose any information provided by the member in relation to the member Program to any Personal User who is, or is applying to be, registered in respect of such member Program, and Finberty may, if it considers appropriate in its sole discretion, approve, modify or refuse any Finberty-related communications from the member to Personal Users.
3. Rewards.
Personal and Members may redeem their points (“Wings”) for rewards (“Rewards”). Rewards must be used within their applicable validity period. There will be strictly no extension of validity period for Rewards. Rewards are not redeemable for cash nor are they exchangeable for other Rewards under any circumstances. Rewards cannot be resold, exchanged, or transferred for value under any circumstances. Rewards shall not be regarded, construed, or used as valuable or exchangeable instruments under any circumstances. Finberty retains the right to reject any Reward that has been tampered with or found in any way unacceptable, or remove privilege of usage if deemed to have been linked to fraudulent activities. Finberty is not responsible for any accidental usage or cancellation of Rewards, and no replacement will be provided in these circumstances. Finberty may suspend the calculation and distribution of wings to rectify any errors in calculation or adjust the calculation as it reasonably deems fit without giving you prior notice or reason. Fraud, abuse of redemptions or any dishonest activities related to the Finberty Rewards may result in the forfeiture of accumulated wings and tier Rewards as well as, demotion of your tier,, or termination of your account. To the extent as permitted by applicable laws, Finberty reserves the right at any time to:
without prior notice to you and at its sole and absolute discretion.
4. 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 Finberty’s express prior written approval.
5. Disclaimer.
Finberty or the Services may provide you with information on Personal Users, members 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”). Finberty 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. Finberty 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 member, 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.
6. NO WARRANTY.
WHILE FINBERTY AIMS TO MAKE THE SERVICES AVAILABLE, FUNCTIONAL AND SECURE AS FAR AS REASONABLY POSSIBLE, YOUR ATTENTION IS SPECIFICALLY DRAWN TO THE FACT THAT FINBERTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND FINBERTY HEREBY EXPRESSLY DISCLAIMS THE SAME. IN ADDITION, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND FINBERTY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. FURTHER, FINBERTY 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.
7. LIMITATION ON LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT FINBERTY 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, FINBERTY’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. MEMBERS. THE MEMBER ACKNOWLEDGES AND AGREES THAT IN ANY EVENT, FINBERTY’S TOTAL LIABILITY TO A member FOR ANY AND ALL CLAIMS WHATSOEVER ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY THE member TO Finberty UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE DATE OF FORMAL COMMENCEMENT OF ACTION BY THE MEMBER IN RESPECT OF ANY CLAIM.
8. Indemnity.
You shall, at your sole cost and expense, defend, indemnify and hold harmless Finberty, Finberty’s employees, directors and officers as well as any Finberty 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 of 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.
9. 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. Members. The member 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 member in accordance with all its terms.
10. Intellectual Property.
Finberty owns all rights, titles and interests 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.
11. 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.
12. 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 Finberty prior to such cause.
13. Termination.
A. Personal Users. Finberty or the Personal User may terminate this Agreement at any time with or without reason or notice. Finberty 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 Finberty Personal User account again. Upon termination, (i) Finberty shall be entitled to inform any member with whom the Personal User has registered in respect of any member 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. Members. Finberty or the member may terminate this Agreement in accordance with the member 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 member Agreement; (2) the Subscription Plan; and (3) this Agreement. Unless otherwise provided in the member 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 Members 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 Finberty, by Finberty ceasing to provide the Services to the member, or in the case of termination by the member, by the member de-registering its account with Finberty: (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 member to Finberty) 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) Finberty shall be entitled to inform any Personal User which has registered with the member in respect of any member Program of the member’s termination of this Agreement and any matter relating thereto, and may delete or retain information relating to the member as allowed or required under applicable law; and (ii) the member 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 Finberty 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.
14. 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.
15. Independent Contractors.
The relationship between Finberty 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.
16. 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 Finberty’s prior written consent.
17. 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.
18. Entire Agreement.
This Agreement shall include and apply to the terms of any member 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 member 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.
19. Amendment and Waiver.
Finberty may amend any of the terms and conditions of this Agreement from time to time and shall publish the updated terms and conditions on Finberty’s website or through the Services. You shall be solely responsible for regularly reviewing and keeping yourself informed and up to date on 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.
20. 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.
21. Costs and Expenses.
Each party shall pay its own costs and expenses in connection with this Agreement.
22. 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.
23. 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.
