Customer Terms and Conditions for Exhibitors and Event Organizers
between POKEN SA, 22 rue du Pont, CH-1003 Lausanne, Switzerland
(“Poken”)
- and -
(“Exhibitor” or "Organizer")
(Each a “Party”, collectively the “Parties”)
By purchasing goods and services from Poken, or by accessing web services made available to you by Poken, you agree to the following:
1.1. WE MAY NEED TO CHANGE THESE TERMS: As Poken evolves, we may need to modify these terms. You agree that we may modify these terms at any time. Therefore, you should review these terms regularly to learn about any changes. Your ongoing use of Poken after we post changes to this agreement means that you accept the new terms.
1.2. YOUR RESPONSIBILITIES: You have the following responsibilities when you use Poken. You must keep your log-in information confidential. You must comply with all laws and these terms. You may not violate the rights of others. You are responsible for maintaining at your own expense the equipment and Internet access that you will need to use Poken. You must back up at your own expense any data, such as contact information, files and other data that you desire to keep. Poken shall not be responsible for any data loss.
1.3. ABOUT OUR SOFTWARE: We may automatically update web-based software on your computer to improve the performance and capabilities of such software. Any software provided as part of Poken is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government end users acquire the software with only those rights as set forth herein.
1.4. PRIVACY POLICY: Our Privacy Policy is located here . By using Poken, you agree to this policy.
1.5. RULES OF CONDUCT: In order to make Poken accessible and a positive experience for all users, and to protect the rights of others (such as their rights of privacy and other legal rights), you agree to abide by the following rules of conduct, especially as relate to the content which you upload and is hosted by Poken. You may not engage in any conduct that:
· violates or infringes the rights of others, including, without limitation, patent, trademark, trade secret, copyright, publicity or other proprietary rights;
· is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, obscene, pornographic, invasive of another's privacy, tortious, or contains explicit or graphic descriptions, or accounts of, sexual acts;
· victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
· impersonates any person, business or entity, including our employees and agents;
· encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
· offers, promotes or encourages betting or wagering prohibited by law;
· violates this Agreement, guidelines, the anti-spam terms below, or any policy posted on the service;
· interferes with the use of Poken by others;
1.6. NO SPAM: You may not harvest information about our users for the purpose of sending, or to facilitate the sending, of unsolicited bulk communications. You may not induce or allow others to use Poken to violate the terms of this section. We may terminate your access or use of Poken immediately and take any other legal action if you, or anyone using your access to Poken, violates these provisions. We may take any technical remedies to prevent unsolicited bulk communications from entering, utilizing, or remaining within our network system.
1.7. CONTENT: We are not liable for content or materials that are provided by others. We are not responsible for content on the Internet. We have no duty to pre-screen content. We reserve the right to remove content from Poken for any reason, but we are not responsible for any failure or delay in removing such material
1.8. INTERNATIONAL USE: We make no representation that Poken is appropriate or available for use in territories where the service is illegal is prohibited.
1.9. DISCLAIMER OF WARRANTIES: We provide Poken "as-is," "with all faults" and "as available." We do not guarantee the accuracy or timeliness of Poken. WE GIVE NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. WE DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT.
1.10. LIABILITY LIMITATION: YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US OR YOUR USE OF POKEN IS TO DISCONTINUE YOUR USE OF THE SERVICE. WE, OUR OWNERS, EMPLOYEES, REPRESENTATIVES AND AGENTS, SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, INABILITY TO USE, OR RELIANCE UPON POKEN, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
1.11. 19. GENERAL TERMS: These terms make up the entire agreement between you and us regarding your use of Poken. We may assign this contract, in whole or in part, at any time, with or without notice to you. You may not assign this contract, or any part of it, to any other person. You agree that the laws of the canton of Vaud, Switzerland govern these terms and any claim or dispute that you may have against us. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the city of Lausanne, canton of Vaud, Switzerland, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. If for any reason a court finds that any provision or portion of these terms is unenforceable, the remainder of these terms will continue in force and effect.
1.12. Poken is providing products and services to Exhibitor on a best-effort basis. The Parties agree that Poken is a technology Start-Up offering innovative solutions which, while developed and produced with utmost attention to professionalism and reliability, may, from time to time, exhibit flaws (manufacturing, software malfunction, etc.).
1.13. Poken shall not be liable to pay any damages resulting from the misuse of the tools provided, or from data loss. Whether from human error or technical malfunction, no damages shall be due or awarded in any situation.
1.14. Poken shall provide EXHIBITOR with (a)(i) access to its Partner Tools and self-service support tools as relevant and (ii) a product sheet which describes Products. EXHIBITOR agrees that Poken may at its sole discretion and with 15 to 30 days’ notice change Product offering, providing Exhibitor with an equivalent level of service as originally promised.
1.15. TERMS FOR PURCHASES: EXHIBITOR agrees to order Products (“Orders”) using standard ordering procedures and according to the prices and delivery conditions which Poken shall communicate in writing to EXHIBITOR. Poken must confirm acceptance of EXHIBITOR Orders in writing (or by return email) for such order to be valid. EXHIBITOR agrees that once Orders are accepted by Poken, such Orders are firm and irrevocable. EXHIBITOR agrees to pay all sums due for Orders upon invoice by Poken, according to the conditions for payment expressed on the invoice. Late payments shall automatically and without prior notice bear interest at an annual rate equal to one point five percent (1.5%) above LIBOR lending rate for the relevant period, calculated from the date due until date of full payment. In addition to this late payment penalty, and (a) without prejudice to the exercise of any other rights or remedies which may be available to it, and (b) without incurring any penalties or liabilities, Poken may elect to suspend performance of its obligations under the relevant Order, or suspend fulfillment of subsequent Orders, until payment in full of the outstanding amounts.
1.16. Unless otherwise specified on the invoice, prices exclude customs duties, sales tax, VAT (if applicable), and other taxes or duties ("Taxes") imposed on the supply of Products, which shall be borne by EXHIBITOR in addition to the prices quoted. EXHIBITOR agrees to refund any amounts paid by Poken in respect to provision of Products under the terms of this Section, within seven days of receipt of relevant justifying documentation from Poken. Any Taxes required by local law to be withheld by EXHIBITOR shall be remitted to the appropriate governmental authorities by EXHIBITOR on behalf of Poken with a copy of the tax receipt or certificate forwarded to Poken. EXHIBITOR shall obtain any such tax receipt or certificate as soon as possible following remittance of corresponding taxes and shall forward such tax receipt or certificate to Poken within thirty (30) days of receipt by EXHIBITOR.
1.17. Poken shall make all reasonable efforts to ensure that Orders are delivered in a timely fashion to EXHIBITOR, at the latest on-site, before the beginning of the event whose start date has been published or agreed to by the Organizer.
1.18. The relationship of Poken and EXHIBITOR established by this Agreement is that of independent contractors, and nothing in this Agreement shall be construed to (a) create an agency, partnership, franchise, joint venture, sales representative, employment or any other type of legal association between Poken and EXHIBITOR; (b) give either Party the power to direct and control the day-to-day activities of the other; (c) constitute the Parties as partners, joint venture, co-owners or otherwise as participants in a joint or common undertaking; (d) allow either Party to create or assume any obligation on behalf of the other for any purpose whatsoever. EXHIBITOR shall in all dealings relating to Products make clear it is acting as a principal on its own account and not as an employee, agent or representative of Poken.
2.1. Poken warrants the Product to be free from defects in materials and workmanship under normal use and service for a period of 90 days after delivery, or the minimum amount allowed under applicable local laws and regulations. To trigger Poken’s obligations under this section, EXHIBITOR shall (a) have notified Poken of the defects in writing within five (5) days after the defects are discovered, and (b) upon Poken’s written request, and at Poken’s expense, send the defective Products to Poken for its analysis. Upon verification and acknowledgement that the Products fall under the terms of this warranty, Poken shall credit the cost of such defective Products to the EXHIBITOR on the next EXHIBITOR order, which shall constitute the sole remedy of the EXHIBITOR under this Section. The said warranty shall not extend to any damage arising in consequence of negligence or improper manipulation of or repair to the Product by EXHIBITOR or a third party, nor to consumable parts of the Product. Poken's warranty is strictly limited to the repair or replacement of defective parts.
2.2. The Parties shall have no liability for any failure to perform, or delay in performance of its obligations due to any force majeure event defined for the purpose of this Agreement as any event which is beyond its control. Each Party shall promptly notify, by any available means, the other Party of any delay caused by force majeure, and will use commercially reasonable efforts to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable.
2.3. Poken reserves the right at its sole discretion to (a)(i) cease manufacturing any Product, or (ii) make any modification to the Product, technical or esthetic, that it deems necessary to improve their qualities, functions or commercialization. In the event EXHIBITOR refuses the modifications according to the terms of this section, Poken shall refund any EXHIBITOR payments as contemplated under this Agreement, and refund shall constitute the EXHIBITOR’s sole and exclusive remedy.
2.4. Except for the warranties contained herein, (a)(i) and excluding damages for personal injury, which shall not be limited, and (ii) excluding the sums owed by the EXHIBITOR to Poken for Products delivered under this Agreement, (b) neither Party shall be liable to the other Party or to a third for any special, indirect, incidental, consequential, punitive or exemplary damages or for loss of profits, revenues, contracts, loss of use, loss of data, goodwill, business interruption, cost of replacement goods or services, or failure to realize expected cost savings even if advised of the possibility of same or same were reasonably foreseeable, and (c) the maximum cumulative and aggregate liability of either Party and its affiliates, subsidiaries and related companies, and their employees, officers, directors, representatives, and agents for all costs, losses or damages from claims arising under or related in any way to this Agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed the lesser of (d)(i) the value of aggregate purchases of Products under this Agreement during the three (3) months immediately preceding the claim, or (ii) €1,000 (One thousand Euros).
2.5. Under no circumstances shall Poken reimburse EXHIBITOR for any costs EXHIBITOR incurs in conforming to any of its obligations under this Agreement, unless such reimbursement is specifically agreed in writing between the Parties, in sufficient detail to allow the Parties to calculate the amounts and timing of such reimbursement.