GemSpot Terms and Conditions of Use
1.1 Please read these Terms and Conditions of Use (“Terms”) carefully. By accessing or using the GemSpot Application and any services provided by us, you agree to be bound by the Terms described below and all other terms incorporated by reference. If you do not agree to all of these Terms, you must not use and/or cease using GemSpot or any services provided by us.
1.2 These Terms apply to your access and use of the iOS application, the Android application, the mobile web application and the website located at https://www.mygemspot.com/ (collectively, the “Application”) provided by GEM Live Sdn. Bhd. (722799-K) of Lot 13.2, 13th Floor, Menara Lien Hoe, No.8, Persiaran Tropicana, Tropicana Golf & Country Resort, 47410, Petaling Jaya, Selangor, Malaysia (“GemSpot”, “we”, “our” or “us”) and any feature, content, tools and services accessible by means of the Application. The Application and such services are collectively referred to as the “Service.” The Terms do not alter in any way the terms or conditions of any other agreement you may have with GemSpot for the Service (or any part thereof). If you are using the Service on behalf of an entity, you represent and warrant that you are authorised to accept the Terms on such entity’s behalf, and that such entity agrees to indemnify you and GemSpot for violations of the Terms.
1.3 We reserve the right to change or modify any of the terms and conditions contained in the Terms or any policy or guideline of the Service, at any time and in our sole discretion. Any changes or modifications will be effective immediately upon the posting of such revisions on our website located at https://www.mygemspot.com/ (the “Site”) or when such revisions are made available via the Service, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Service (or any portion thereof) following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Service. If you do not agree to the amended Terms, you must stop using the Service.
1.4 If you have any questions regarding the use of the Service, please email us at [email protected].
2. OTHER AGREEMENTS
2.2 For the purposes of these Terms, any reference to “GemSpot” or “we”, “us” or “our” in these Terms shall be deemed to mean GEM Live Sdn. Bhd., and any reference to applicable services under these Terms shall also include our services.
3. YOUR INFORMATION
4. DEVICE USAGE TERMS AND CONDITIONS
4.1 You acknowledge and agree that your use of the Service must also be in accordance with the usage rules established by your mobile device platform or service provider.
5. REGISTRATION DATA
5.1 You agree to:
i. provide accurate, current and complete information about yourself as may be prompted by any signup, login and/or registration forms made available via the Service (“Registration Data”);
ii. maintain and promptly update the Registration Data, and any other information you provide to GemSpot, in order to keep it accurate, current and complete; and
iii. accept all risk of unauthorised access to the Registration Data and any other information you provide to GemSpot.
5.2 You may not use the Service if you are less than 21 years of age and all of the members in your group are also less than 21 years of age. By using the Application, you verify that you are entering into this agreement with a clear/un-inebriated mind.
5.3 GemSpot is under no obligation to retain a record of your account or any data or information that you may have stored by means of the account or your use of the Application and Services. You are only authorised to create and use one account for the Service and are prohibited from utilising alter-egos or other disguised identities when utilising the Application or Services. You are under no obligation to use or continue to use the Application or Services and may cease use of the Application or Services without notice to GemSpot.
6. GRANT AND RESTRICTIONS
6.1 Subject to the terms, conditions and limitations set forth in the Terms, GemSpot grants you a non-exclusive, non-transferable and revocable license to use the Application on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by GemSpot that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license, in which case the terms of that license shall prevail.
6.2 You agree not to do, or authorise or permit any third-party to do, any of the following:
i. distribute or make the Application available over a network where it could be used by multiple devices at the same time;
ii. rent, lease, lend, sell, redistribute or sublicense the Application;
iii. copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law); or
iv. remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Application.
If you violate any of the foregoing restrictions, your use of the Application will immediately cease and you will have infringed the copyright and other rights of GemSpot, which may subject you to prosecution and damages. GemSpot reserves all rights not expressly granted to you in the Terms.
7. CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS
7.1 You agree that GemSpot may collect and use technical data, personal information and related information in connection with your use of the Application including, but not limited to, contact information and technical information about your device, system and application software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Application and of software updates, product support and other services. You also consent to our communicating with you about the Application or in connection with the features, functions and activities contained in the Application.
8. COMPATIBILITY WITH MOBILE DEVICES
8.1 GemSpot does not warrant that the Service will be compatible or interoperable with your mobile device or any other hardware, software or equipment installed on or used in connection with your mobile device.
9. CARRIER CHARGES
9.1 You acknowledge and understand that the Service requires and utilises phone service, data access and text messaging capabilities. Carrier rates for phone, data and text messaging may apply and you are responsible for any such charges.
10. PRODUCT DESCRIPTIONS
10.1 GemSpot attempts to be as accurate as possible. However, GemSpot does not warrant that the Service is complete, reliable, current or error-free. If you have reason to believe that a VIP table you purchased through the Service does not meet the claims advertised within the Service your sole remedy is to not accept the table and contact GemSpot immediately, and in any case no later than three business days following the date of purchase. GemSpot will make a determination as to the merits of your claim in our sole discretion.
11. ADVERTISED PRICES
GemSpot makes no guarantee that the prices advertised through the Services represent:
i. the lowest price for a VIP table in every area on any particular day; or
ii. the published price for a VIP table on another website or publication not affiliated with GemSpot in every area on any particular day.
12. HONORING YOUR PAYMENT COMMITMENTS
12.1 When you make a purchase via the Services you are representing to us that:
i. any credit information you supply is true and complete;
ii. charges incurred by you will be honoured by your credit card company; and
iii. you will pay the charges incurred by you at the posted prices, including any applicable taxes.
You are also acknowledging that:
a) the posted prices include the table rate negotiated by GemSpot with nightclubs, bars, restaurants and lounges’ suppliers plus service fees and taxes, where applicable;
b) GemSpot pays its nightclubs, bars, restaurants and lounge suppliers for the taxes due on the rental of the room but the nightclubs, bars, restaurants and lounge suppliers calculate and remit applicable taxes to the applicable taxing jurisdictions; and
c) GemSpot retains a service fee from the posted price as compensation in servicing your VIP table purchase, regardless of whether you are able to consummate your VIP table service purchase.
13. TABLE OVERBOOKINGS AND AGENT FEES
13.1 If a nightclub, bar, restaurant or lounge has been overbooked and is sold out, it is the nightclub, bar, restaurant or lounges’ responsibility to accommodate you with another VIP table. This is our agreement with each venue. We will endeavour to enforce our agreements with nightclubs, bars, restaurants and lounges, and while we are not responsible to you if the nightclub, bar, restaurant or lounge does not, for whatever reason, find/create you a VIP table, we ask that you contact us immediately in the event that the nightclub or lounge is unable to find/create you an available table so that we may assist in the process.
14. GEMSPOT CREDITS
14.1 GemSpot booking credit is not redeemable for cash or cash equivalents, is non-transferable and may not be applied towards prior purchases. Other restrictions may apply. Unless you paid us in full for any booking credits, we reserve the right to rescind any booking credits subject to reasonable notice to you. Sharing your referral code on coupon sites, search engines, or any other public forums is prohibited. Doing so may result in all credit being revoked.
15. ELECTRONIC COMMUNICATIONS
15.1 When you use the Service or send e-mails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail or providing notices via the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Any such emails may include marketing and promotional content.
16. THIRD PARTY INTERACTIONS
16.1 Your use of the Application and your contact, interaction, or dealings with any third-parties arising out of your use of the Service is solely at your own risk. You acknowledge and agree that GemSpot is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as the result of the Service. The nightclubs and/or lounges and other suppliers providing accommodations through the Service are independent contractors and not agents or employees of GemSpot. GemSpot is not responsible, and shall not be held liable for, the acts, errors, omissions, representations, warranties, breaches or negligence of any such suppliers for any personal injuries, death, property damage, loss, theft or other damages or expenses resulting therefrom.
17. USER CONTENT AND YOUR CONDUCT
17.1 The Service includes forums and other interactive areas or services (“Interactive Areas”) in which you or other users can create, post or share content, materials, data, information, text, photos and/or other materials (“User Content”). You are solely responsible for your use of such Interactive Areas and the User Content you share.
17.2 You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Service any of the following:
a) User Content that is libellous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
b) User Content that is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, or otherwise create liability or violate any local, state, national or international law;
c) User Content that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual property right or other right of any party;
d) Unsolicited promotions, political campaigning, or commercial messages (SPAM) or any chain messages or User Content designed to deceive or trick the user of the Service;
e) Private information of any third-party including, but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; and
f) Viruses, corrupted data or other harmful, disruptive or destructive files or code, script or other software designed to automate any functionality on the Service without GemSpot’s express written consent.
17.3 You further agree that you are solely responsible for your conduct while using the Service, and you agree that you will not do any of the following in connection with the Service or the users of the Service:
a) Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service in any manner;
b) Collect any personally identifiable information about other users (except as specifically authorized by GemSpot), or intimidate, threaten, stalk, or otherwise harass or cause discomfort to other users of the Service;
c) Use the Service for any commercial purpose;
d) Use the Service for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates the Terms or any other rules or polices established from time-to-time by GemSpot;
e) Create an account, post any content, or otherwise use the Service if you are not, at least, 21 years of age;
f) Modify, adapt, hack or emulate the Service;
g) Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Service or users of the Service or third- parties; and
h) Infringe upon or violate the rights of GemSpot, its users or any third-party.
17.4 GemSpot takes no responsibility and assumes no liability for any user conduct or for any User Content posted, stored or made available via the Service, nor is GemSpot liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of Interactive Areas and the Service is at your own risk. Enforcement of the user content and conduct rules set forth in the Terms is solely at GemSpot’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third-party or any reasonable expectation that the Service will not contain any content that is prohibited by such rules.
18. THIRD PARTY CONTENT
18.1 GemSpot may provide third-party content via the Service and may provide links to Web pages and content of third-parties (collectively, the “Third-Party Content”) as a service to those interested in this information. GemSpot does not control, endorse or adopt any Third- Party Content and makes no representation or warranties of any kind regarding the Third- Party Content including, but not limited to, its accuracy or completeness. You acknowledge and agree that GemSpot is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use such Third-Party Content contained therein at their own risk.
19. ADVERTISEMENTS AND PROMOTIONS; THIRD-PARTY PRODUCTS AND SERVICES
19.1 GemSpot may run advertisements and promotions from third-parties via the Service or may otherwise provide information about or links to third-party products or services via the Service. Your business dealings or correspondence with, or participation in promotions of, such third-parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third-party. GemSpot is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-GemSpot advertisers or third-party information accessible via the Service.
20.1 The GemSpot and “GEM” logo are trademarks or registered trademarks of GEM Live Sdn. Bhd. and in numerous international jurisdictions. These marks may not be reproduced or used without GEM Live Sdn. Bhd. prior written permission. You may not use any metatags or any other “hidden text” utilizing “GemSpot” or any other name, trademark or product or service name of GemSpot without our prior written permission. In addition, the look and feel of the Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of GemSpot and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos made available via the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
21.1 The Service (including, but not limited to, the Application) contains the valuable proprietary content of GemSpot and its licensors and is protected by copyright and other intellectual property laws and treaties. You agree not to use the Service (including, but not limited to, the Application) except in its intended manner in accordance with the terms and conditions of the Terms.
22. TERMINATION OR MODIFICATION OF APPLICATION
22.1 GemSpot reserves the right to change, suspend, remove, discontinue or disable access to the Service (including, but not limited to, the Application) at any time without notice. In no event will GemSpot be liable for the removal of or disabling of access to any portion or feature of the Service (including, but not limited to, the Application).
23.1 If you breach any of the terms or conditions of the Terms or GemSpot discontinues the Application, the Terms will automatically terminate. In the event of the termination of the Terms for any reason: (i) the license granted to you in the Terms will immediately terminate; and (ii) you must immediately cease all use of the Application and destroy or erase all copies
of the Application in your possession or control. All of the sections of the Terms will survive any termination of the Terms except the License section and the Consent to Use of Data and Mobile Communications section. Any use of the Application after termination is unlicensed and is in violation of the copyright and other rights of GemSpot. GemSpot and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in their sole discretion.
24. UNLAWFUL ACTIVITY
24.1 We reserve the right to investigate complaints or reported violations of the Terms and to take any action we deem appropriate including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third-parties and disclosing any information necessary or appropriate to such persons or entities relating to your Registration Data, usage history, posted materials, IP addresses and traffic information.
25. INFORMATION AND PRESS RELEASES
25.1 The Site may contain information and press releases about us. We disclaim any duty or obligation to update this information. Information about companies other than ours contained in any press release or otherwise should not be relied upon as being provided or endorsed by us.
26.1 You expressly acknowledge and agree that use of the Service (including, but not limited to the Application) is at your sole risk and that the entire risk as to satisfactory quality, performance, safety, accuracy and effort is with you. To the maximum extent permitted by Malaysian law, the Service (including, but not limited to the Application) is provided on an “as is” and “as available” basis. GemSpot disclaims any and all warranties and representations (express or implied, oral or written) with respect to the Terms and the Service (including, but not limited to the Application) whether alleged to arise by operation of law, by reason of custom or usage in the trade, by course of dealing or otherwise, including any and all:
i. Warranties of merchantability;
ii. Warranties of fitness or suitability for any purpose (whether or not GemSpot knows, has reason to know, has been advised or is otherwise aware of any such purpose); and
iii. Warranties of non-infringement or condition of title.
26.2 GemSpot does not warrant that the functions contained in the Application will be accurate or meet your requirements, that the operation of the Application will be uninterrupted or error-free, or that defects in the Application will be corrected. No oral or written information, guidelines or advice given by GemSpot or its authorised representative will create a warranty.
27.1 You agree, at your sole expense, to fully defend, indemnify and hold us, our independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to:
i. your conduct;
ii. your violation of the Terms or your violation of the rights of any third-party; and
iii. any user content;
iv. use of the Services.
28. LIMITATION OF LIABILITY
28.1 To the extent not prohibited by law, in no event will GemSpot be liable to you or any third- party for any direct, incidental, special, indirect, consequential, exemplary or punitive damages whatsoever including but not limited to damages for loss of profits, loss of data, business interruption, or any other commercial damages or losses arising out of or related to your use of or inability to use the service (including but not limited to the Application), howsoever caused, regardless of the theory or threat of liability (contract, warranty, tort, negligence, product liability or strict liability) and even if GemSpot has been advised of the possibility of such damages. .
29. APPLICABLE LAW AND VENUE
29.1 The Terms and your use of the Service including, but not limited to, the Application will be governed by and construed in accordance with the laws of Malaysia, applicable to agreements made and to be entirely performed within Malaysia, without resort to its conflict of law provisions.