CONSUMER TERMS AND CONDITIONS - PAYLATER
These Consumer Terms and Conditions (these “Terms and Conditions”) sets out the terms and conditions applicable to you, as a customer (“you”, “your” or “Consumer”) regarding the use of the hoolah System (as defined below) provided by Hoolah Group (Thailand) Limited for Paylater. By using the hoolah System, you are taken to have read, acknowledged, and agreed to these Terms and Conditions.
1. DEFINITIONS AND INTERPRETATION
The following definitions apply in these Terms and Conditions unless inconsistent with the context or otherwise specified:
Affiliate means any Subsidiary of that legal entity and any Parent of that legal entity and any other Subsidiary of any Parent of that legal entity.
Account means a virtual account within the hoolah System specifically for use by a Consumer.
AML Laws means any applicable anti-money laundering, know-your-customer and/or anti-terrorism laws.
Business Day means a day in which banks and financial institutions are open for business in Thailand (i.e. Monday through Friday, excluding national holidays and banking holidays as announced by the Bank of Thailand).
Charge means any charge that may be imposed on you as a result of your failure to comply with your obligations, including Late Payment Charges, in accordance with the terms of the Contract.
means all information, including personal data, relating to you that you provide to hoolah.
Consumer has the meaning ascribed to it in the preamble.
Consumer Status Tier
means the tier that a Consumer is classified into as part of a tiered system within the hoolah System, which may influence, among other things, a Consumer’s Order Limit and any other entitled benefits relating to the Consumer’s use of the Services.
Contract means the Instalment Payment Contract entered into between the Consumer and the Participating Merchant for each Order via the hoolah System.
Credit Card or Debit Card
means a credit card or debit card that has been issued by a financial institution to a Consumer. For clarification, this does not include Visa or MasterCard issued prepaid debit cards, virtual debit cards or virtual account numbers, gift cards or any other type of access card.
hoolah means Hoolah Group (Thailand) Limited, a company incorporated under the laws of Thailand with limited liability (Registration No. 0105563181668) whose registered office is at No. 173 Asia Center Building, South Sathorn Road, Khwaeng Thung Maha Mek, Khet Sathon,
hoolah Group means hoolah and any of its Affiliates.
hoolah System means the system developed by hoolah (as hosted and used on the ShopBack App and/or ShopBack Website) for the implementation and administration of the factoring services to Participating Merchants and payment arrangement for Consumers, whereby Participating Merchants are able to assign the Contract to hoolah, and which includes performing validation checks and assessments on Consumers and Participating Merchants using the system, managing accounts and processing transactions and requests.
Instalment means one of such number of separate instalments as specified in the Contract after a successful Order has been placed via the hoolah System.
Instalment Payment Structure Instalment Schedule
has the meaning ascribed to it in Clause 2.1.
means the schedule generated by hoolah for the Consumer’s payment of Instalments.
Intellectual Property Rights
means intellectual property rights of any kind including without limitation, all rights in or arising out of patents, trade, service and other marks, layout design rights, registered designs, design rights (and applications for all of the same), copyrights, rights affording equivalent protection to copyrights and design rights, moral rights, trade, product, brand and business names, rights protecting trade secrets and confidential information, get-ups and logos, inventions, discoveries, improvements, designs, techniques, computer programs, trade secrets, supply, distributorship, agency and other like agreements, technical and commercial know-how and confidential processes, all other information including rights acquired under licenses or other agreements in connection with any of the same, rights protecting goodwill and reputation and in every case, all other similar corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
Late Payment Charge
means a charge imposed on a Consumer where the Consumer fails to pay an Instalment on the Scheduled Due Date and within any accompanying grace period (where applicable) in accordance with the terms of the Contract.
Licensed PSP means a Thai licensed payment service provider that provides payment services to hoolah in relation to the hoolah System.
means any behaviour in bad faith including, but not limited to:
- using the hoolah System for unauthorised purposes;
- inappropriately gaining from the hoolah System or Participating Merchants using it;
- reverse engineering the hoolah System; or
- engaging in fraudulent activities in and around the hoolah System or supporting hoolah Systems,
and shall include any attempts by you in relation to the above which could, if carried out to a natural conclusion, conceivably lead to the occurrence of any of the above.
Nominated Payment Method
means the method of payment nominated by a Consumer to make payments to hoolah (including payment of Charges, Instalments and Late Payment Charges).
Order means a PayLater order created in the hoolah System as a result of a successful transaction between a Consumer and a Participating Merchant using the hoolah System to effect payment. An Order may comprise a single Product or multiple Products.
Order Limit means the total amount of Order Value or the Orders that a Consumer is able to place and accumulate via the hoolah System. Such Order limit may factor into account the Consumer Status Tier of the Consumer.
Order Value means the monetary value of an Order, which also includes the applicable value added tax, delivery and postage fees.
Parent means another Person in which exercises control over a Subsidiary.
means an approved retailer or retail merchant that allows Consumers to purchase Products on its Store and make payment using the hoolah System.
|PayLater||means the Buy Now Pay Later instalment payment method available for Consumers offered by the ShopBack App and/or ShopBack Website using the hoolah System.|
Person means any individual, corporation, partnership, trust, limited liability company, association or other entity.
Product means an item and/or service for sale by a Participating Merchant in their Store. A Product or Products form part of an Order.
QR Code means Quick Response Code, a type of matrix barcode (or two- dimensional barcode) that is unique to the Participating Merchant and generated for the Participating Merchant to accept Orders from Consumers via the hoolah System.
Refund means any refund on any Order that a Consumer may request from a Participating Merchant and which the Participating Merchant will communicate to hoolah by such means as approved by hoolah.
Reversal means any reversal of any Order that a Consumer may request from a Participating Merchant and which the Participating Merchant will communicate to hoolah by such means as approved by hoolah.
Scheduled Due Date means the date on which an Instalment is due to be paid to hoolah in accordance with the Instalment Schedule.
Services means the provision of the hoolah System as specified in Clause 2.
ShopBack means Ecommerce Enablers Pte Ltd, company incorporated under the laws of Singapore (UEN No: 201411189G) whose registered office is at 65 Pasir Panjang Road, Singapore 118506, being an Affiliate of hoolah.
ShopBack App means the mobile application developed and operated by ShopBack that facilitate the provision of the Services on the hoolah System, and which allows Consumers to make purchases via the hoolah System by scanning the Merchant's QR Code and/or through the Merchant's listing on the ShopBack App.
ShopBack Website means ShopBack's website, available at www.shopback.co.th or otherwise as may be communicated by hoolah.
Store means any physical store and/or the online e-commerce store of the Participating Merchant where a Participating Merchant offers Products for sale to Consumers.
Subsidiary a company is a "subsidiary" of another Person, if that other Person (a) holds a majority of the voting rights in it, or (b) is a member of it and has the right to appoint or remove a majority of its directors or officers, or (c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it or if it is a subsidiary of a company that is itself a subsidiary of that other company.
Terms and Conditions
means these Consumer Terms and Conditions, which sets out the terms and conditions applicable to you as a Consumer regarding the use of the hoolah System provided by hoolah.
Thailand means the Kingdom of Thailand.
Thai Baht means the lawful currency of Thailand.
Unless the context otherwise requires, or as specifically provided otherwise, in the interpretation of these Terms and Conditions:
(a). headings are for reference only and shall not affect the interpretation or meaning of any provision of these Terms and Conditions;
(b).“written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form;
(c). the singular includes the plural and vice versa; and
(d). any reference to a clause, party or schedule is a reference to a clause, party or schedule to these Terms and Conditions.
2.1 Under these Terms and Conditions, hoolah will grant you access to and use of the hoolah System, under which Participating Merchants may offer, and Consumers may accept, the ability to purchase Products from Participating Merchants through their Stores via Instalments (“Instalment Payment Structure”).
2.2 By using the hoolah System, you acknowledge and agree that for each Order which is accepted by the Participating Merchant, the Participating Merchant will immediately thereafter irrevocably sell and assign absolutely to hoolah all its present and future rights, title and interest in and to the benefit of the Contract in respect of such Order (including the Instalments payable under the Instalment Payment Structure for such Order). For the avoidance of doubt, the assignment does not include assignment of obligations that the Participating Merchant has towards you, including but not limited to, obligations to fulfil the Order. Upon such assignment, you will be obliged to pay the Instalments for such Order to hoolah according to the Instalment Schedule for such Order as agreed between you and the Participating Merchant in the relevant Contract for such Order.
2.3 You acknowledge that, with effect from the Contract in respect of an Order being irrevocably assigned to hoolah, the Participating Merchant shall have no further interest in the Instalments for such Order and all subsisting rights and all remedies for enforcing payment of the Instalments for such Order shall vest in hoolah, including the right to determine and enforce any Charges (including Late Payment Charges) set out under the relevant Contract.
2.4 The hoolah System involves contractual arrangements which constitute a factoring arrangement. The hoolah System does not constitute a lending or credit facility and hoolah does not provide any credit to Participating Merchants or Consumers. For the avoidance of any doubt, the parties hereto intend that the transactions contemplated by each Contract are an absolute sale and purchase transaction, whereby the Consumer purchases from the Participating Merchant certain Products, and the parties hereto do not intend that the Instalment Payment Structure to be a loan made to the Consumer from either the Participating Merchant or hoolah.
2.5 hoolah does not provide payment services to the Participating Merchants or you. Activities pertaining to payment and settlement provided in relation to the hoolah System and the Services will be operated by Licensed PSPs.
3. TERMS OF SERVICE
3.1 Consumer Eligibility
(a) In order to be eligible to receive the Services, you must:
(i) be a natural person and not a company, partnership or other commercial or non- commercial entity;
(ii) be at least 20 years old at the time of any Order made by you;
(iii) have a valid and verifiable email address;
(iv) have a valid and verifiable mobile telephone number issued by a telecommunications provider and which is registered in your name;
(v) where you are receiving the Services through a Participating Merchant's e-commerce Store, have a billing address and shipping address located in Thailand; and
(vi) own a valid Credit Card or Debit Card which you can use to make payments on the hoolah System.
(b) Your eligibility is assessed and determined upon each Order you make, and hoolah reserves the right to deny, suspend or terminate the provision of the Services to you in the manner prescribed in Clause 3.2(i) in the event that you fail to meet the eligibility requirements set out in Clause 3.1(a) at any time, and you shall have no right of recourse or appeal against such decision.
(a) Upon making your first Order, you shall provide hoolah with the following details:
(i) your date of birth;
(ii) a valid and verifiable email address which belongs to you and of which you are the registered user; and
(iii) a valid and verifiable mobile phone number issued through a telecommunications provider and which is registered in your name,
and such details shall be used to create an Account for you in order for you to manage your Orders and Instalment Schedule. hoolah reserves the right to request for any further personal information, and evidence for the purpose of compliance with the applicable laws.
(b) You will be notified upon creation of your Account and will be required to set a password for your Account. You remain solely responsible for the safety and security of such password.
(c) Where you believe that your password has been compromised, you shall notify hoolah immediately and in the event that you fail to do so, you shall be liable for further purchases made using your credentials.
(d) You remain responsible for any unauthorized access to your Account except where such unauthorised access is a result of hoolah’s failure to take reasonable steps to prevent such unauthorised access.
(e) You shall have only one Account.
(f) Where there are any surplus monies which exist as credits in your Account due to Reversals and Refunds and you have no outstanding amounts owed by you or Instalments payable to us, you may request for a refund and we will endeavour to refund such monies to you as soon as practicable.
(g) hoolah may limit your access and ability to use your Account in the following ways:
(i) where you have failed to pay any Instalment(s) by the Scheduled Due Date and within any accompanying grace period (where applicable), hoolah may suspend you from making further Orders and subsequently, where your outstanding amounts owed to hoolah have been referred to a third party collection agency, hoolah will block access to your Account;
(ii) where hoolah has reasonable cause to suspect that you have been involved in any Nefarious Behaviour within the hoolah System, hoolah:
(A) reserves the right to conduct investigations, with internal and external third-parties, to determine the extent and impact of the suspected Nefarious Behaviour;
(B) may seek your cooperation and assistance in dealing with such activities;
(C) may request immediate payment from you for all outstanding amounts only to hoolah for such Account(s);
(D) reserves the right to suspend any Account(s) associated with you until such time as such Nefarious Behaviour is halted or restricted to the satisfaction of hoolah;
(E) reserves the right to temporarily suspend or permanently block you from using or participating in the hoolah System or its network of Participating Merchants;
(F) may, at its sole discretion, close any Account(s) whether associated with the suspected Nefarious Behaviour or otherwise; and
(G) reserves the right to report such behavior to the relevant authorities; and
(iii) in addition to Clause 3.2(g)(ii), where devices, email accounts and/or phone numbers are being used to perform an Order or create an Account and such devices, email addresses and/or phone numbers are reasonably suspected by hoolah to be involved in connection with any Nefarious Behaviour within the hoolah System, hoolah:
(A) reserves the right to conduct investigations, with internal and external third-parties, to determine the extent and impact of the suspected Nefarious Behaviour;
(B) reserves the right to block those devices and their attributes;
(C) reserves the right to suspend any and all accounts associated with such devices and their attributes and the suspected Nefarious Behaviour;
(D) reserves the right to temporarily suspend or permanently block those devices and their attributes from using or participating in the hoolah System or network;
(E) may, at its sole discretion, close any Account(s) whether associated with the suspected Nefarious Behaviour or otherwise;
(F) may request immediate payment from you and any associated persons for all outstanding amounts for such Account(s); and
(G) reserves the right to report such behavior to the relevant authorities.
(h) You may close your Account at any time provided that:
(i) you have paid in full all Instalments associated with your Orders, and there are no outstanding amounts owed by you to hoolah that have been referred to a third party for collection;
(ii) you have paid all Late Payment Charges imposed on you, or such Late Payment Charge has been reversed (subject to hoolah’s discretion);
(ii) there are no outstanding disputes between you and hoolah or any Participating Merchant;
(iv) there are no outstanding Refunds or Reversals from a Participating Merchant that are still pending processing; and
(v) you are not subject to any investigation regarding your Orders, Instalments or any other reason as reasonably determined by hoolah.
(i) hoolah may close your Account:
(i) without your consent or prior notice to you, if hoolah becomes aware that any Account associated with you is being used by a third party or has been compromised in any way
(ii) whether as a result of your actions or inactions or otherwise;
(iii) if hoolah considers that you are using the hoolah System inappropriately, illegally (which may contravene applicable laws and/or regulations including, but not limited to, AML Laws), or against the spirit of these Terms and Conditions;
(iv) if you have not paid your outstanding amounts to hoolah and:
(A) your outstanding amounts have been referred to a third-party agency for collection; and
(B) such collection has been carried out with limited or no success,
and in such case you may not be able to open another Account with hoolah for a period or time that is deemed appropriate by law or regulation, and hoolah reserves the rights to:
(v) pursue any outstanding sums due and owing to hoolah in connection with these Terms and Conditions through third-parties and relevant legal means available to hoolah;
(vi) notify any credit reporting agency or bureau located in Thailand or any agency or bureau that reports such credit reporting information to Thai companies, and identify any outstanding amounts against your known details to hoolah as at the date of termination of these Terms and Conditions; and
(vii) notify any other statutory or governmental authority regarding the outstanding amounts and your identity where required under Thai law.
(i) Should you fail to meet the eligibility requirements set out in Clause 3.1 on an ongoing basis, hoolah may suspend, block, withdraw, close or otherwise render inoperable your Account.
3.3 Consumer Status Tier
hoolah may assign every Consumer with a Consumer Status Tier, which is determined in real-time based on various factors as hoolah may determine from time to time in its sole discretion, and such Consumer Status Tier may influence your Order Limit and any other relevant benefits relating to your use of the Services.
3.4 Validations, Checks and Risk Assessments
In respect of any Order, hoolah will conduct the following checks and assessments:
(a) real-time checks and validations on the Participating Merchant’s eligibility, exposure limit, product risk and other matters relating to Participating Merchants and the transaction;
(b) real-time checks and validations on your eligibility;
(c) real-time checks and validations on your credentials, devices, relationships with other hoolah Consumers and other historical data; and
(d) Order Limit assessments based on your Consumer Status Tier, the Order Value, the risks associated with the Products in the Order and your potential capability to pay amounts owed,
and where hoolah is satisfied of the eligibility of both you and the Participating Merchant at the time of making of the Order, hoolah will create an Order associated with you in the hoolah System for the Order Value provided to hoolah by the Participating Merchant in the Store.
3.5 Placement of Orders
(a) Each time you make an Order, you are deemed to have acknowledged and accepted these Terms and Conditions as they stand on the date of placement of the Order.
(b) Where the Order request is successful, hoolah will provide you with your Instalment Schedule and hoolah will notify the Participating Merchant of the successful Order accordingly. You will enter into the Contract, and take necessary actions as requested by hoolah so that the assignment process. Upon completing the aforementioned process, hoolah will provide you with an email receipt for your first Instalment paid (where applicable).
3.6 Rejection or Cancellation of Orders
All Orders placed are subject to hoolah’s assessment and discretion and hoolah reserves the right to reject or cancel an Order where:
(a) hoolah has reason to suspect, or becomes aware, that you may have or have materially breached these Terms and Conditions;
(b) you fail to satisfy any of hoolah’s validations, checks and assessments;
(c) requested by the Participating Merchant associated with the Order, and in such case hoolah is not responsible for such rejection or cancellation and you should reach out to the Participating Merchant should you have any queries relating to it;
(d) you have exceeded or will exceed your Order Limit;
(e) the Participating Merchant associated with the Order has exceeded or will exceed its exposure limits;
(f) hoolah suspects or becomes aware of suspicious activity from you within the hoolah System which may contravene applicable laws and/or regulations including, but not limited to,
AML Laws; or
(g) hoolah suspects or becomes aware generally that the Participating Merchant and/or their systems have been or may have been compromised,
and where the Product from the cancelled Order has not been delivered to you, hoolah will, on a best endeavours basis, refund the monies paid by you and associated with the cancelled Order to the same Nominated Payment Method.
4. YOUR OBLIGATIONS
(a) use the hoolah System in accordance with the operating procedures determined by hoolah from time to time;
(b) keep your contact details up-to-date;
(c) supply all information requested by hoolah in a timely and truthful manner;
(d) not provide hoolah with any information that is false, misleading, untrue or inaccurate in its nature (including any claim of false identity);
(e) immediately inform hoolah of any actual or potentially fraudulent activities which your Nominated Payment Method has or may have been involved in, and allow hoolah to share such information with Licensed PSPs, or the relevant third-party payment providers for the purposes of reducing further fraudulent activities;
(f) be solely responsible for any matters relating to tax or additional fees arising from your use of the hoolah System, including but not limited to:
(i) tax determination;
(ii) payment of any taxes or fees required by any governmental or regulatory authority; and
(iii) payment of any fees or commission incurred in connection with any exchange of monies associated with any Order;
(g) be responsible for your Account, its use and ongoing security, and shall not permit any unauthorized person or other entity to access your Account at any time unless required by law;
(h) not use your Account to purchase Products for third parties for the purposes of receiving further or additional payments from such third parties;
(i) use your Account in a responsible and lawful manner and not use your Account to procure any goods or services that are illegal or unlawful in nature or in a manner that contravenes any laws including AML Laws;
(j) to the fullest extent permitted by law, cooperate with hoolah in the event of any investigation performed by hoolah, any third-party or any legal, governmental or regulatory authority in relation to any Order, payment or matter related to your Account;
(k) be solely responsible for possessing the relevant system requirements and/or devices to enable the use and operation of the QR Codes (you may otherwise be unable to utilise the hoolah System); and
(l) when using the hoolah System in-store via the ShopBack App, be solely responsible for inputting the correct amount of the Order Value. The Consumer acknowledges and agrees that hoolah shall not be liable for any loss, damage, cost or expense incurred by the Consumer as a result of any inaccuracies in the Order Value inputted by the Consumer and any shortfall or excess amounts arising from such inaccuracies shall be settled directly between the Participating Merchant and the Consumer (which may include a Reversal or a Refund).
You agree and acknowledge that any actions and activities that occur via your Account, including but not limited to, placing Orders via the hoolah System, will be considered as your action and you will be solely responsible for such action.
5. DISPUTES, REVERSALS AND REFUNDS
(a) In the event of any dispute between you and a Participating Merchant which you are unable to resolve, and where you raise the matter with us, we will use our reasonable endeavours in good faith to (but shall not be obliged to) mediate and resolve such dispute. In such case you acknowledge that hoolah is not obliged to intervene and that the Participating Merchant is not obliged to follow hoolah’s directions regarding such dispute.
(b) You acknowledge that notwithstanding an ongoing dispute, you remain liable to hoolah for any outstanding amounts related to the Order in dispute.
(c) Any dispute, including potential disputes, that you may have with hoolah in relation to your Account and hoolah System, must be raised to hoolah directly via the channel and process as described in clause 6.
In respect of a Reversal:
(a) it is the duty of the Participating Merchant to notify you if they are unable to fulfil any Order;
(b) you will not receive the Product(s) contained in the affected Order; and
(c) such Reversal will be reflected in your Account in accordance with the provisions of the Contract.
In respect of a Refund:
(a) it is your duty to notify the Participating Merchant of any Refund request and to comply with the Participating Merchant’s refund process and any other statutory requirements in relation to such refund process, and you and the Participating Merchant shall reach an agreement regarding the Refund amount without hoolah’s involvement and prior to the Participating Merchant lodging a Refund request with us;
(b) the Participating Merchant shall lodge such Refund request with hoolah within [sixty (60) calendar days] of the creation of the Order and any Refund request beyond this time must be expressly agreed between you and the Participating Merchant, and the Participating Merchant shall notify hoolah within [twenty-four (24) hours] of such agreement to Refund;
(c) where a full Refund is agreed between you and the Participating Merchant, you shall return the disputed Product(s) (where applicable) to the Participating Merchant and the Participating Merchant shall acknowledge receipt of the disputed Product(s), upon which your Account will be updated to reflect the full Refund;
(d) where a partial Refund is agreed between you and the Participating Merchant, you shall return the disputed Product(s) (where applicable) to the Participating Merchant and the Participating Merchant shall acknowledge receipt of the disputed Product(s), upon which:
(i) your Account will be updated to reflect the partial Refund and we reserve the right to make adjustments to aggregate Instalments payable to hoolah;
(ii) where the partial Refund results in excess of funds, your Account will be credited with the difference and such credits may be used to settle the outstanding Instalments (revised based on the Contract) that become due and payable; and
(A) where such credits are insufficient, you will be required to make payments for the remaining outstanding balance; and
(B) where such credits exceed the outstanding amounts such that additional credits remain after all Instalments have been paid, hoolah will refund the value of such additional credits to you in accordance with Clause 3.2(f); and
5.4 For the avoidance of doubt, hoolah is not obliged to contact or to seek a Refund or Reversal on your behalf or on the behalf of the Participating Merchant and hoolah is not obliged to take any action until the Participating Merchant lodges a Refund request.
5.5 Upon receipt of a Reversal or Refund request, hoolah shall, within a reasonable time, process such request and pay such refund amount to hoolah’s Licensed PSP, to be processed in line with the Licensed PSP's practices and settled to you. In this regard, you acknowledge and agree that any refund amount due to be paid to your Nominated Payment Method is subject to handling methods outside hoolah’s control and you shall not hold hoolah responsible for any delays caused directly or indirectly by any financial institution or its agents associated with your Nominated Payment Method.
6.1 If you have any complaints regarding your Account, Instalment payment calculations, outstanding amounts, any hoolah staff or any other matter relating to hoolah, please contact us at the details below to raise a formal complaint:
Mail: Hoolah Group (Thailand) Limited, No. 173 Asia Center Building, South Sathorn Road, Khwaeng Thung Maha Mek, Khet Sathon, Bangkok.
6.2 hoolah aims to respond to you within seventy-two (72) hours of receiving such complaint and to resolve the matter within fourteen (14) Business Days of receiving such complaint, failing which hoolah will notify you of the reason(s) for such delay and if any further information or action is required from you, and you agree to provide hoolah with all reasonable assistance, including providing any additional information requested of you, to resolve the matter.
6.3 For the avoidance of doubt, hoolah will not accept any complaints arising out of your incapacity to pay your Instalments.
7. ADDITIONAL ACKNOWLEDGEMENTS
You acknowledge that:
(b) hoolah does not keep version-controlled copies of these Terms and Conditions and other hoolah policies in a publicly accessible archive and you are expected to keep a copy of these documents should you wish to keep track of them;
(c) hoolah does not have any control over the Products offered by Participating Merchants and is not responsible or liable for the quality or delivery of these Products, and Participating Merchants remain responsible for fulfilling Orders made by you in a timely manner and/or accepting any Refunds;
(d) you are aware of your consumer rights under Thai law and that these rights extend to your purchase of Products from Participating Merchants, and nothing in these Terms and Conditions is intended to modify, exclude, restrict or deny any of your rights under Thai law; and
(e) hoolah does not provide any credit facilities or payment services to you.
(f) hoolah is not required to guarantee the identity of any Participating Merchant and/or their staff.
8.1 hoolah shall at all times keep confidential and not disclose to any third party the Confidential Information except as permitted by this Clause 8 and for the purposes of performing our obligations under these Terms and Conditions, and agrees to protect the Confidential Information with security measures and a degree of care that would apply to its own Confidential Information.
8.2 Notwithstanding Clause 8.1, hoolah may disclose Confidential Information:
(a) to other entities in the hoolah Group and third-party payment providers;
(b) to its officers, directors, employees, auditors, advisors, subcontractors and other persons providing services to it where (provided that such person is under a duty of confidentiality in relation to the Confidential Information, professional, contractual or otherwise) to the extent necessary for hoolah to perform its obligations under these Terms and Conditions;
(c) with respect to your personal data, in accordance with Clause 10;
(d) where requested or required by law, regulation and/or any court of competent jurisdiction or any competent banking, taxation, judicial, governmental, supervisory, regulatory or equivalent body; and
(e) to any other person where necessary for the performance of its obligations under these Terms and Conditions or with your consent if such disclosure is unnecessary or irrelevant for the performance of our obligations under the Agreement.
8.3 Notwithstanding any other provisions of these Terms and Conditions, the obligations of confidentiality under this Clause 8 shall survive the termination or expiration of these Terms and Conditions for a period of two (2) years thereafter.
9. INTELLECTUAL PROPERTY
9.1 All Intellectual Property Rights in and related to the hoolah System, hoolah and ShopBack mobile applications (including the ShopBack App), hoolah and ShopBack Website and portals, their composite engineering, know-how and processes shall be and shall remain the exclusive property of hoolah or ShopBack respectively.
9.2 You must not copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of, re-post to other applications or websites, change, or allow or make any third party to do so, or otherwise distribute, license, sub-licence or transfer in any form any aspect of hoolah’s intellectual property. For the avoidance of doubt, you shall have no rights, title and interest in any Intellectual Property Rights created, developed, modified, improved or changed to the hoolah System.
10. DATA PROTECTION
You acknowledge and agree that hoolah may collect, use, process, disclose and/or transfer (whether in or outside Thailand) your personal data for the purposes and to the persons as set out in hoolah’s data protection policy, which is available on the ShopBack Website and may be updated from time to time. hoolah shall comply with all applicable data protection and privacy laws and regulations (including but not limited to the Thai Personal Data Protection Act and any sub-regulations issued under it) and shall have in place adequate safeguards to protect your personal data.
11. PERSONAL DATA
12. LIMITATION OF LIABILITY, INDEMNITY AND DISCLAIMERS
12.1 Limitation of Liability
To the extent permitted by applicable law:
(a) hoolah (including its Affiliates, related bodies corporate, directors, employees, officers, agents and representatives) and any third parties providing services for or on behalf of hoolah, ShopBack or their Affiliates will not be liable for any direct, indirect, special, consequential, incidental or punitive damages (including without limitation loss of profits, loss of revenue and loss of data) arising out of or in connection with these Terms and Conditions, the ShopBack App, the ShopBack website and the hoolah System; and
(b) the liability to you of hoolah, ShopBack and its Affiliates for any non-excludable damages shall not exceed the value of any Orders that are to the subject matter of such claim, including any Charges that have been applied against you.
To the extent permitted by applicable law, you acknowledge that you are responsible for and agree to hold harmless hoolah and its Affiliates from and against any all claims, costs, expenses, damages, liabilities, obligations, and losses (including reasonable legal fees) to the extent arising out of or in connection with your:
(a) breach of these Terms and Conditions, and/or your negligence or willful misconduct;
(b) inability to pay amounts on Orders made using your Account, whether such Orders were created directly by you or as a result of your negligence or inability to keep your Account secure; or
(c) inability to pay amounts on Orders made using your Account due to a change in your financial circumstances subsequent to the making of such Order,
save to the extent that such claim and/or subsequent damages or where it could be reasonably expected to do so, failed to [take] reasonable steps to mitigate the claim and/or subsequent damages arises as a result of willful default or gross negligence on the part of hoolah, its directors, employees, officers, agents and representatives and those of any member of the hoolah Group.
12.3 Disclaimer of Warranties
(a) Except for any express warranties set forth in these Terms and Conditions and subject to your rights under the Thai consumer protection law, hoolah, ShopBack and their Affiliates do not provide or give any implied warranties or guarantees to any products or services provided by hoolah in using the hoolah System nor give any express warranty or guarantee as to the suitability, and availability of the hoolah System or your eligibility to use the hoolah System.
(b) hoolah provides content or material on the ShopBack Website that is provided by Participating Merchants, third-parties and other internet-based resources. hoolah uses best endeavours to ensure that content or material is correct, accurate, reputable, of high-quality and up-to-date and does not make any warranties or guarantees in relation to that content or the providers of that content. Where any inaccuracy has been brought to hoolah’s attention, hoolah will attempt to correct any inaccuracies within a reasonable time and where practicable to do so.
(c) You acknowledge that you have not relied on any representation and/or warranty made by hoolah, ShopBack or any of their Affiliates, which has not been expressly stated or referred to in these Terms and Conditions.
13.1 All notices or other communications between the parties shall be given in writing and in the Thai or English language, as agreed by you, and shall bedelivered:
(a) via electronic mail;
(b) via registered mail or other third-party agents; or
(c) via post,
to the registered email address or shipping or billing address (as the case may be) associated with your Account.
13.2 In addition to Clause 13.1, hoolah may send general communications as text messages to your registered mobile phone number.
13.3 For the purposes of this Clause 13, a notice or other communication is taken to be received:
(a) for notices and other communications sent via electronic mail, the day it was sent; and
(b) for notices and other communications delivered via registered post, after the delivery date.
13.4 If you change your address and fail to notify hoolah of such change and the new address, delivery of notices to you at the previous known address is deemed compliant with the notice obligations under this Clause 13.
13.5 Communications from you to hoolah must include the following details:
(a) your Account details, including, but not limited to, the email address and mobile phone number registered with your Account; and
(b) any additional information reasonably requested of you to verify your identity.
14. TRANSFER AND ASSIGNMENT
14.1 You shall not transfer or assign any of its rights and obligations under these Terms and Conditions without hoolah’s prior written consent.
14.2 hoolah may transfer, assign or novate these Terms and Conditions and any rights and obligations under these Terms and Conditions to a third party without your prior consent and/or notice to you.
14.3 You acknowledge and agree that hoolah may, without your notice or consent, appoint and engage third- party collection agencies to carry out and enforce any actions in relation to any outstanding amounts owed by you to hoolah.
15.1 From time to time hoolah may unilaterally modify provisions of these Terms and Conditions which apply generally to all Consumers using the hoolah System, without requiring express or implied consent and without prior notice of such modifications, for the following reasons:
(a) hoolah changes, alters, amends, removes, and/or introduces functionality to the hoolah System;
(b) hoolah introduces new policies in to the hoolah System to protect the hoolah System and its operations;
(c) hoolah introduces new products or services in to the hoolah System; or
(d) hoolah is required to do so by law and/or regulation; and/or
(e) for such other reasons as hoolah may, in its sole discretion, deem reasonable,
and in such case, the modified Terms and Conditions will be published on the ShopBack Website and publicly accessible at https://www.hoolah.co/th/terms and Conditions upon making a new Order.
you will be prompted to accept the modified Terms and
15.2 For the avoidance of doubt, any Order made by you prior to any modifications remains subject to the terms of the Terms and Conditions as it stood at the time of the placement of the Order, and any existing Orders and Instalments and their constituent attributes such as Charges and Late Payment Charges (where applicable) remain in place until they have been paid in full.
15.3 If you do not agree to any modifications, you may immediately suspend your Account, settle your outstanding amounts and payments due with hoolah within a reasonable time, and subsequently close off your Account without prejudice.
15.4 You may re-join hoolah at any point in time thereafter.
16. GENERAL PROVISIONS
16.1 No Agency, Partnership etc.
Nothing in these Terms and Conditions shall be deemed to constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these Terms and Conditions. Neither party shall have, nor represent that it has, any authority to make any commitment on the other party’s behalf.
16.2 Force Majeure
Neither party shall have any liability under or be deemed to be in breach of these Terms and Conditions for any delays or failures in performance of these Terms and Conditions which result from circumstances beyond the reasonable control of that party, except for payment obligations. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
Without prejudice to any other rights or remedies a party may have, the parties each acknowledge and agree that damages may not be an adequate remedy for any breach of these Terms and Conditions and the parties shall be entitled to the remedies of injunction, specific performance and other equitable relief (but for the avoidance of doubt no right of rescission or, unless expressly permitted, termination) for any threatened or actual breach of these Terms and Conditions.
16.4 No Waiver
No failure to exercise, nor any delay in exercising, on the part of either party, any right or remedy under these Terms and Conditions shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in these Terms and Conditions are cumulative and not exclusiveof any rights or remedies provided by law. Any waiver by a party must be in writing and is effective only for the specific purpose for which it is given and for the specific time period, if any, contemplated by it.
16.5 Third Party Rights
Unless expressly provided to the contrary in these Terms and Conditions (for the avoidance of doubt, including Clause 9 of these Terms and Conditions), a person who is not a party to these Terms and Conditions has no right under these Terms and Conditions to enforce or to enjoy the benefit of any term of these Terms and Conditions.
If any provision of these Terms and Conditions or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable only to that extent and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of these Terms and Conditions.
16.7 Electronic transactions
The parties agree and accept that an execution of these Terms and Conditions satisfies the legal requirement that it be made in writing and appropriately signed. An entering into these Terms and Conditions, sending documents, notifications, or correspondence by the counterparty that are made electronically are legally binding, have the same effect as written documents and can serve as an evidence at court, mediation, or any other statutory dispute resolution proceedings for any disputes between the parties.
16.8 Entire Agreement
You expressly acknowledge that you have read these Terms and Conditions and understood its provisions, and the parties agree that these Terms and Conditions, including all documents or other material incorporated by reference or documents executed in connection with or contemporaneously with these Terms and Conditions, constitutes the entire agreement between them with respect to the Services. No promise, inducement, representation or agreement other than as expressly set forth in these Terms and Conditions has been made to or by the parties.
16.9 Governing Law and Jurisdiction
These Terms and Conditions shall be governed and construed in accordance with the laws of Thailand. You hereby irrevocably submit to the exclusive jurisdiction of the courts of Thailand.