Terms & Conditions
PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS.
This User Agreement (this “Agreement”) is a contract between you (“you”, “your” or “User”) and Pongo Payments Ltd, incorporated in Scotland (company number SC629184) with its registered offices at Eden Park House, Eden Park, Cupar, Scotland KY15 4HS (“Pongo,” “PongoPay”, “we”, “our” or “us”). You can contact us by emailing firstname.lastname@example.org or by writing to us at the above address.
You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of any part of our mobile application (the “App”, “PongoPay App”, or “App Services”), located in the Apple App Store and Google Play store.
Subject to the conditions set forth herein, we may, in our sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the our website at www.pongopay.com (“Site”). We will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to the fees charged by us, we will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in the fees or any temporary or promotional fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE.
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
1. PONGOPAY ACCOUNTS
Section 1 discusses what you must agree to before using the App or App Services and the different types of accounts that can be created in the App, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the App or App Services (an “Account”), by using the App or App Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted in the App, you agree to abide by this Agreement and the other Terms of Service.
To access and use certain portions of the App and the App Services, you must register for an Account. We reserve the right to decline a registration to join Pongo or to add an Account type as a Client (as defined in Section 1.4.1 below) or Tradesperson (as defined in Section 1.4.2 below), for any lawful reason.
Upon registering for an Account, you will also be registered for a MangoPay account as defined in the MANGOPAY Ts&Cs. These Ts&Cs are included in the PongoPay terms of service (LINK).
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY
To register for an Account or use the Site and Site Services, you must, and hereby represent that you (a) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Tradesperson Services; and (b) are a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
In order to be eligible to register for an Account or use the App and App Services, you must also be eligible to register for a MangoPay as per MangoPay End User Ts&Cs.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types. Once you register for one Account type, you can add the other Account types. For example, if you already have a Tradesperson Account (as defined in Section 1.4.2 below), you can add a Client Account as a separate account type in settings. You agree not to have or register for more than one Account without express written permission from us. For example, if you already have a Tradesperson Account, you agree not to have or register for a second Tradesperson Account. We reserve the right to revoke the privileges of the Account or access to or use of the App or App Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for an Account or add an Account type to use the App and App Services as a Client (a “Client Account”). Any user using the App, App Services for the purpose of paying for Tradesperson Services is a “Client” for purposes of the Terms of Service.
1.4.2 TRADESPERSON ACCOUNT
You can register for an Account or add an Account type to use the App and App Services as a Tradesperson (a “Tradesperson Account”). Any user using the app for the purpose of charging for services is a Tradesperson or Builder for purposes of the Terms of Service.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. You represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, we may close any or all related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on PongoPay. You authorize PongoPay, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents.
2. PURPOSE OF PONGOPAY
Section 2 discusses what PongoPay does and does not do when providing the App and App Services and some of your responsibilities when using the App or entering into a Service Contract with a Tradesperson or Client, as detailed below.
The PongoPay App is a payment tool which allows Tradespersons to receive payment for goods and services from Clients. Subject to Terms and Conditions, PongoPay provides the App Services to Users, including hosting and maintaining the App, facilitating the formation of Service Contracts and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User Uses the App to invoice and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH PONGOPAY
PongoPay merely makes the App and App Services available to enable Tradespersons and Clients to transact directly with each other. Pongo Payments Ltd. does not introduce Tradespersons to Clients, find projects for Tradespersons, or find Tradespersons for Clients. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users, and we are not a party to that Service Contract.
You acknowledge, agree, and understand that we are not a party to the relationship or any dealings between Client and Tradesperson. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User Content; (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions); (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts; (d) performing Tradesperson Services; or (e) paying for Service Contracts or Tradesperson Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User. We do not vet or otherwise perform background checks on Tradespersons or Clients. You acknowledge, agree, and understand that Pongo Payments Ltd. does not, in any way, supervise, direct, control, or evaluate Tradespersons or their work and is not responsible for any project, project terms or work product. Pongo Payments Ltd. makes no representations about and does not guarantee, and you agree not to hold Pongo Payments Ltd. responsible for, the quality, safety, or legality of Tradesperson Services; the qualifications, background, or identities of Users; the ability of Tradespersons to deliver Tradesperson Services; the ability of Tradespersons to pay for Tradesperson Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or Tradesperson to actually complete a transaction.
You also acknowledge, agree, and understand that Tradespersons are solely responsible for determining, and have the sole right to determine, which projects to accept; the time, place, manner, and means of providing any Tradesperson Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Pongo Pay, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) we will not have any liability or obligations under or related to Service Contracts and/or Tradesperson Services for any acts or omissions by you or other Users; (iii) we do not, in any way, supervise, direct, or control any Tradesperson or Tradesperson Services; does not impose quality standards or a deadline for completion of any Tradesperson Services; and do not dictate the performance, methods or process Tradesperson uses to perform services; (iv) Tradesperson is free to determine when and if to perform Tradesperson Services, including the days worked and time periods of work, and we do not set or have any control over Tradesperson’s pricing, work hours, work schedules, or work location, nor are we involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Tradesperson for a project; (v) Tradesperson will be paid at such times and amounts as agreed with a Client in a given Service Contract, and we do not, in any way, provide or guarantee Tradesperson a regular salary or any minimum, regular payment; (vi) we do not provide Tradespersons with training or any equipment, labor, tools, or materials related to any Service Contract. Tradespersons are free to use subcontractors or employees to perform Tradesperson Services and may delegate work on contracts. If a Tradesperson uses subcontractors or employees, Tradesperson further agrees and acknowledges that this paragraph applies to our relationship, if any, with Tradesperson’s subcontractors and employees as well and Tradesperson is solely responsible for Tradeperson’s subcontractors and employees.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions described in Section 7. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
Tradesperson acknowledges and agrees that Tradesperson is solely responsible (a) for all tax liability associated with payments received from Tradesperson’s Clients and through the Pongo Pay App, and that we will not withhold any taxes from payments to Tradesperson; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Tradesperson is not covered by or eligible for any insurance from us; (c) for determining whether Tradesperson is required by applicable law to issue any particular invoices for the Tradesperson Fees and for issuing any invoices so required; (d) for determining whether Tradesperson is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Tradesperson Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate.
In the event of an audit of Pongo Pay, Tradesperson agrees to promptly cooperate with us and provide copies of Tradesperson’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Tradesperson is engaging in an independent business as represented to us.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND TRADESPERSON
3.1 SERVICE CONTRACTS
If a Client and Tradesperson decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Tradesperson. Client and Tradesperson have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that we are not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Pongo Pay and any Tradesperson or a partnership or joint venture between Pongo Pay and any User.
With respect to any Service Contract, Clients and Tradespersons may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand our rights and obligations under the Terms of Service, including this Agreement and the Escrow Instructions . The parties to a Service Contract can, if the parties prefer, agree to the Optional Service Contract Terms* in whole or in part, in addition to or instead of other such agreements.
The Optional Service Contract Terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Users are responsible for complying with any local requirements. We do not assume any responsibility for any consequence of using the Optional Service Contract Terms. The Optional Service Contract Terms are not intended to and do not (a) constitute legal advice, (b) create a solicitor-client relationship, or (c) constitute advertising or a solicitation of any type. Each situation is highly fact-specific and requirements vary by situation and jurisdiction and therefore any party should seek independent legal advice. We expressly disclaim any and all liability with respect to actions or omissions based on the Optional Service Contract Terms.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that we will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions.
If Tradesperson or Client intends to obtain an order from any arbitrator or any court that might direct us, the assigned Payment Service Provider (as defined below), or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting us or Payment Service Provider, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Service Contract Terms. If and to the extent that the Users do not articulate any different agreement, then they agree that this Section 3.3 (Confidentiality) applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.4 THIRD-PARTY BENEFICIARIES
It is the intent of the parties to this Agreement that Users who have entered into Service Contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Pongo Pay and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Tradesperson for any project. Client is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Tradespersons should be engaged as independent contractors or employees of Client and engaging them accordingly; we will have no input into, or involvement in, worker classification as between Client and Tradesperson and Users agree we have no involvement in and will have no liability arising from or relating to the classification of a Tradesperson generally or with regard to a particular project.
5. PONGOPAY FEES
Section 5 describes what fees you agree to pay to PongoPay in exchange for PongoPay providing the App and App Services to you and what taxes PongoPay may collect, as detailed below.
Tradespersons pay Pongo Pay a Service Fee (as defined in this Section 5.1) for the use of the App Services. Pongo Pay charges service fees to Tradespersons for using the apps communication, reporting, dispute resolution and payment services, as described in the Escrow Instructions (the “Service Fee(s)”). The Service Fees (to use the App Services) are paid solely by Tradesperson. When a Client pays a Tradesperson for a project or when funds related to a project are otherwise released to a Tradesperson as required by the Escrow Instructions (See Section 6.1), Payment Service Provider will credit the freelancer Escrow Account for the full amount paid or released, and then subtract and disburse to Pongo Pay the Service Fee. Tradesperson hereby irrevocably authorizes and instructs the Payment Service Provider to deduct the Service Fee from the Tradesperson Escrow Account and pay PongoPay on the Tradeperson’s behalf.
Pursuant to the User Agreement, we charge Tradespersons a Service Fee for each payment their Client makes to the Tradesperson on a Service Contract. This will be 1.9% of all fees collected by Tradesperson from Client.
6. PAYMENT TERMS AND ESCROW SERVICES
6.1 ESCROW SERVICES
PongoPay uses a Payment Service Provider to provides escrow services to Users to deliver, hold, and/or receive payment for a project, and to pay fees to PongoPay (“Payment Service Provider”).
PongoPay and a Payment Service Provider will use and release funds deposited in an Escrow Account only in accordance with this Agreement, the Escrow Instructions and the Payment Service Provider End User Agreements.
The Users agree that they will be bound by, and we will follow, the Escrow Instructions.
We undertake to perform only such duties as are expressly set forth in this Agreement, the Escrow Instructions, and the other Terms of Service, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service, including this Agreement and the Escrow Instructions. We will be under no duty to inquire about or investigate any agreement or communication between Client and Tradesperson, even if communication is carried out using the App. We have the right to rely upon, and will not be liable for acting or refraining from acting upon, any written notice, instruction, or request furnished to us by Client or Tradesperson in accordance with this Agreement or the Escrow Instructions, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We have no duty to solicit any payments or releases that may be due to or from any Escrow Account. We may execute any of our powers and perform any of our duties under this Agreement and the Escrow Instructions directly or through agents or solicitors (and will be liable only for the careful selection of any such agent or solicitor) and may consult with counsel, accountants, and other skilled persons to be selected and retained by us. To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any such counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the Escrow Instructions, we will be entitled to refrain from taking any action until we are directed otherwise in writing by Client and Tradesperson or by a final order or judgment of an arbitrator or court of competent jurisdiction.
7. RECORDS OF COMPLIANCE
Section 7 discusses your agreement to make and keep all required records, as detailed below.
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to us upon request. Nothing in this subsection requires or will be construed as requiring us to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on our part to store, backup, retain, or grant access to any information or data for any period.
8. WARRANTY DISCLAIMER
Section 8 discusses your agreement and understanding that the App and App Services may not always be available or work perfectly, as detailed below.
YOU AGREE NOT TO RELY ON THE APP, THE APP SERVICES, ANY INFORMATION ON THE APP OR THE CONTINUATION OF THE APP. THE APP AND THE APP SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE APP, THE APP SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 12 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST US WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
9. LIMITATION OF LIABILITY
Section 9 discusses your agreement that we usually will not have to pay you damages relating to your use of the App and App Services and, if it is, at most it will be required to pay you £2000, as detailed below.
Nothing in this Agreement excludes or limits our liability for death or personal injury caused by our negligence or for fraud or in respect of any other liability arising out of or in connection with this Agreement which cannot be excluded or restricted by law.
We are not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
your use of or your inability to use our App or App Services;
delays or disruptions in our App or App Services;
viruses or other malicious software obtained by accessing, or linking to, our App or App Services;
glitches, bugs, errors, or inaccuracies of any kind in our App or App Services;
damage to your hardware device from the use of the App or App Services;
the content, actions, or inactions of third parties’ use of the App or App Services;
a suspension or other action taken with respect to your Account;
your reliance on the quality, accuracy, or reliability of information, or metrics found on, used on, or made available through the App; and
your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL WE, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF PONGO PAY, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) £2000; OR (B) ANY FEES RETAINED BY US WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR TRADESPERSON DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
Section 10 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that we are not a party to any contract between Users, you hereby release us, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Tradesperson Services provided to Client by a Tradesperson. This release also includes, for example and without limitation, any requests for refunds based upon disputes or transfer of funds as a result of a Dispute Outcome reached by the PongoPay mediator. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
Section 11 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the App or App Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless Pongo Pay, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the App and the App Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Tradesperson as an independent contractor; the classification of Pongo Pay as an employer or joint employer of Tradesperson; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 11, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable solicitors’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable solicitors’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
12. AGREEMENT TERM AND TERMINATION
Section 12 discusses your and our agreement about when and how long this Agreement will last, when and how either you or we can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and we expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the App and App Services is automatically revoked, and your Account will be closed. We are not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or project entered into between Users. If you attempt to terminate this Agreement while having one or more open projects, you agree (a) you hereby instruct us to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such projects have closed on the App; (c) we will continue to perform those App Services necessary to complete any open project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to us for any App Services or such other amounts owed under the Terms of Service and to any Tradespersons for any Tradesperson Services.
Without limiting our other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the App or App Services, deny your registration, or permanently revoke your access to the App and refuse to provide any or all App Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Pongo Pay or our Affiliates; may be contrary to the interests of the App or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the App under the same Account or a different Account or reregister under a new Account without our prior written consent. If you attempt to use the App under a different Account, we reserve the right to reclaim available funds in that Account to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the App depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF WE DECIDE TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, WE HAVE THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT WE WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
12.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep in the App and that that any closure of your Account may involve deletion of any content stored in your Account for which Pongo Payments Ltd. will have no liability whatsoever. We, in our sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non- circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Pongo Payments Ltd. from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
Section 13 discusses additional terms of the agreement between you and PongoPay, including that the Terms of Service contain our full agreement and how the agreement will be interpreted and applied.
13.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and us relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even we drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or us because of the authorship of any provision of the Terms of Service.
13.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon us unless in a written instrument signed by a duly authorized representative of us or posted on the Site by us. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without our prior written consent in the form of a written instrument signed by a duly authorized representative of us. We may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will insure to the benefit of the successors, heirs, and permitted assigns of the parties.
13.4 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, epidemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
Pongo Payments Ltd. (Pongo) is committed to protecting and respecting your privacy. This policy, together with any agreement we enter into with you, sets out how your personal data will be treated, your privacy rights and how the law protects you.
Pongo (our, us, we, data controller) provides a full range of payment services and is responsible for your personal data. Our details are included below, and the purposes for which we act as a data controller are detailed in the table under the section titled “Purposes for which we will use your personal data”.
Pongo Payments Ltd.
Eden Park House
Please read the following carefully to understand our views and practices regarding your personal data and how we will treat it. By providing consent you are accepting and consenting to the practices described in this policy.
INFORMATION WE COLLECT FROM YOU
Personal data, or personal information, means any information about an individual from which that person can be identified. It does not include data where the identity has been removed(anonymous data).
We may collect, use, store and transfer different kinds of personal data about you which we have grouped together follows:
– Identity Data includes information about your identity such as name, address, date of birth, username or similar identifier, title, gender.
– Contact Data includes where you live and how to contact you including: address, email address and telephone numbers.
– Financial Data includes information about your financial position, status and history, and payment account details (can include bank, credit, payment and electronic money accounts).
– Transaction Data includes details about payments to and from your accounts with us.
– Technical Data includes details about the devices and technology you use including internet protocol (IP) address, your login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices you use to access our website, app or services.
– Profile Data includes your username and password, purchases or orders made by you, your interests, preferences, feedback and survey responses.
– Usage Data includes information about how you use our website, app, products and services.
– Marketing and Communications Data includes your preferences in receiving marketing from us and our third parties and your communication preferences.
– Special Types of Data include racial or ethnic origin, racial or ethnic origin, religious or philosophical beliefs, trade union membership, genetic and bio-metric and health data. We will only process such data if the law allows us to do so.
IF YOU FAIL TO PROVIDE PERSONAL DATA
Where we need to collect personal data by law, or under the terms of a contract we have with you and if you fail to provide that data when requested, we may not be able to meet our regulatory obligations or perform the contract we have or are trying to enter into with you (for example, to provide you with goods or services). If you do not provide the requested information we may have to decline your application or cancel a product or service you have with us but we will notify you if this is the case at the time.
HOW YOUR PERSONAL DATA IS COLLECTED
We use different methods to collect data about you (and your business) including through:
Information you give us:
when you apply for, or use, our products or services;
when you communicate with us whether by phone, post, email, online or by other means;
when you use our websites or device application;
when you apply for an account;
in emails, letters and other correspondence; and
when you request marketing to be sent to you by us or Third Parties.
Your use of our services. The data we collect when you use our services (such as making transactions, viewing your account details or using any part of our website) includes:
Transaction Data; Profile Data; Usage Data; and Technical Data
Third parties. We may receive personal data about you from various third parties and public sources as set out below:
Public information sources such as Companies House and the Electoral Register;
Government and law enforcement agencies; and
Agents working on our behalf including fraud prevention agencies, analytics providers, advertisers.
HOW WE USE YOUR DATA
We will only use your personal data when the law allows us to. Most commonly, we will use your personal data in the following circumstances:
Where you consent to it;
Where we need to perform the contract we are about to enter into or have entered into with you;
Where it is necessary for our legitimate interests (or those of a third party) and your interests and fundamental rights do not override those interests; and
Where we need to comply with a legal or regulatory obligation.
PURPOSES FOR WHICH WE WILL USE YOUR PERSONAL DATA
We have set out below, in a table format, a description of all the ways we plan to use your personal data, and which of the legal bases we rely on to do so. We have also identified what our legitimate interests are where appropriate. We have also included which data controllers will use, and be responsible for, your data in the manner specified.
Note that we may process your personal data for more than one lawful ground depending on the specific purpose for which we are using your data. Please contact us if you need details about the specific legal ground we are relying on to process your personal data where more than one ground has been set out in the table below.
We strive to provide you with choices regarding certain personal data uses, particularly around marketing and advertising.
PROMOTIONAL OFFERS FROM US
We may use your Identity, Contact, Technical, Usage and Profile Data to form a view on what we think you may want or need, or what may be of interest to you or your business. This is how we decide which products, services and offers may be relevant for you or your business (we call this marketing).
You will receive marketing communications from us if you have requested information from us or purchased services from us and, in each case, you have not opted out of receiving that marketing.
We will get your express opt-in consent before we share your personal data with any company outside our group of companies for marketing purposes.
You can ask us to stop sending you marketing messages or sharing your data with third parties for marketing purposes at any time by contacting us using the details provided above.
A cookie is a small file of letters and numbers that we store on your browser or the hard drive of your computer if you agree.
Cookies contain information that is transferred to your computer’s hard drive.
We use the following cookies:
Strictly necessary cookies. These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website, use a shopping cart or make use of e-billing services.
Analytical/performance cookies. They allow us to recognise and count the number of visitors and to see how visitors move around our website when they are using it. This helps us to improve the way our website works, for example, by ensuring that users are finding what they are looking for easily.
Functionality cookies. These are used to recognise you when you return to our website. This enables us to personalise our content for you, greet you by name and remember your preferences (for example, your choice of language or region)
Targeting cookies. These cookies record your visit to our website, the pages you have visited and the links you have followed. We will use this information to make our website and the advertising displayed on it more relevant to your interests. We may also share this information with third parties for this purpose.
You can find more information about the individual cookies we use and the purposes for which we use them in the table below.
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You can block cookies by activating the setting on your browser that allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies (including essential cookies) you may not be able to access all or parts of our site.
CHANGE OF PURPOSE
We will only use your personal data for the purposes for which we collected it, unless we reasonably consider that we need to use it for another reason and that reason is compatible with the original purpose. If you wish to get an explanation as to how the processing for the new purpose is compatible with the original purpose, please contact us.
If we need to use your personal data for an unrelated purpose, we will notify you and we will explain the legal basis which allows us to do so.
Please note that we may process your personal data without your knowledge or consent, in compliance with the above rules, where this is required or permitted by law.
WHO WE MAY DISCLOSE YOUR INFORMATION TO
You agree that we may disclose your personal information to:
Any member of our group of companies, which means our subsidiaries, our ultimate holding company and its subsidiaries as reasonably necessary for the purposes, and on the legal basis, detailed in this policy;
Allied Irish Banks plc and First Merchant Processing (Ireland) Designated Activity Company who we work with in order to provide a full range of payment services;
Our agents, advisors and business partners who we use to help manage your accounts and services, improve services and resolve issues such as legal disputes;
HM Revenue & Customs, regulators and other authorities;
Fraud prevention and credit reference agencies for the purpose of verifying your identity and ensuring the security of your account;
Any party linked with you or your business including ; organisations that introduce you to us;
Organisations we introduce you to for marketing purposes;
Analytics and search engine providers that assist us in the improvement and optimisation of our website;
Card scheme providers such as Visa, MasterCard, Maestro where the card scheme rules require us to do so or to any regulatory body as required under any applicable law or regulations;
Any insurance company for the purposes of insuring risk; and
Other entities where we are obliged to by law or to law enforcement agencies for the purposes of registration of fraud or suspected fraud or where we have your consent.
You agree that we can and will disclose your personal information to third parties:
In the event that we sell or buy any business or assets, in which case we will disclose your personal data to the prospective seller or buyer of such business or assets;
If substantially all of our assets are acquired by a third party, in which case personal data held by it about its customers will be one of the transferred assets;
In addition to the disclosures detailed in this section, we may also disclose your personal information where it is necessary to do so: for compliance with a legal obligation; in order to protect the vital interests of you or another natural person; and for the establishment, exercise or defence of legal claims.
HOW WE USE YOUR INFORMATION TO MAKE AUTOMATED DECISIONS
We may use systems to make automated decisions based on information we hold about you or your business. This helps us to make sure our decisions are quick, fair, efficient and correct, based on what we know. These automated decisions can affect the products, services or features we may offer you now or in the future. The following are some of the ways we may use systems to make automated decisions:
Tailoring products and services
We may use your data along with that of other customer in order to study and learn about our customers’ needs, and to make decisions based on what we learn. This helps us to design products and services for different customer groups, and to manage our relationships with them.
We use your personal information to help determine if your account, or transaction, is being used for fraud or money laundering. If there is a risk of fraud, or money laundering, we may suspend or terminate your transaction and/or account and refuse access to your account.
We use automated checks to help determine if you satisfy Paybase criteria for an account, including fraud, money laundering and eligibility checks.
Your rights with respect to automated decisions
You can ask that we do not make our decision based on the automated decision alone.
You can object to an automated decision, and ask that a person reviews it.
If you want to know more about these rights, or to exercise them, please contact us.
WHERE WE STORE AND TRANSFER YOUR PERSONAL DATA
All information you provide to us will be transferred and stored in a jurisdiction located in the European Economic Area(EEA). However, we may transfer some or all of your data to countries outside of the EEA which may not offer the same level of protection as the GDPR with respect to the processing of your personal data. Where your data is transferred to such countries it will be protected by appropriate safeguards, namely the use of standard data protection clauses adopted or approved by the European Commission(EC) can can by found on the EC’s website:
Where data is to be transferred to a group company in a country outside of the EEA which may not offer the same level of protection as the GDPR with respect to the processing of your personal data., we will ensure that the group company agrees to binding corporate rules in accordance with Article 47 of the GDPR which can be found at:
Where we transfer data to organisations based in the US, we may transfer data to them if they are part of the Privacy Shield which requires them to provide similar protection to personal data shared between the Europe and the US. For further details, see European Commission:
We have put in place appropriate security measures to prevent your personal data from being accidentally lost, used or accessed in an unauthorised way, altered or disclosed. In addition, we limit access to your personal data to those employees, agents, contractors and other third parties who have a business need to know. They will only process your personal data on our instructions and they are subject to a duty of confidentiality.
We have put in place procedures to deal with any suspected personal data breach and will notify you and any applicable regulator of a breach where we are legally required to do so.
KEEPING AND DELETING YOUR DATA
We will only retain your personal data for as long as necessary to fulfil the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements.
To determine the appropriate retention period for personal data, we consider the amount, nature, and sensitivity of the personal data, the potential risk of harm from unauthorised use or disclosure of your personal data, the purposes for which we process your personal data and whether we can achieve those purposes through other means, and the applicable legal requirements.
We keep certain data for minimum periods, namely:
we retain Transaction Data for a minimum of seven years after the date of the transaction;
we retain certain Account Information, for a minimum of seven years after your agreement with us has ended;
The majority of personal data we hold will be deleted seven years after the termination of any agreement you have with us unless it is needed for other necessary or legitimate purposes.
In some circumstances you can ask us to delete your data: see request erasure below for further information.
In some circumstances we may anonymise your personal data (so that it can no longer be associated with you) for research or statistical purposes in which case we may use this information indefinitely without further notice to you.
Under the GDPR you have the right to:
Request access to your personal data (commonly known as a “data subject access request”). This enables you to receive a copy of the personal data we hold about you and to check that we are lawfully processing it. Please note that we also have to consider our regulatory obligations and the rights of other individuals when providing you with information and that this may mean that the information we provide is redacted or partial in some instances.
Request correction of the personal data that we hold about you.This enables you to have any incomplete or inaccurate data we hold about you corrected, though we may need to verify the accuracy of the new data you provide to us.
Request erasure of your personal data. This enables you to ask us to delete or remove personal data where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal data where you have successfully exercised your right to object to processing (see below), where we may have processed your information unlawfully or where we are required to erase your personal data to comply with local law. Note, however, that we may not always be able to comply with your request of erasure for specific legal reasons which will be notified to you, if applicable, at the time of your request.
Object to processing of your personal data where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground as you feel it impacts on your fundamental rights and freedoms. You also have the right to object where we are processing your personal data for direct marketing purposes. In some cases, we may demonstrate that we have compelling legitimate grounds to process your information which override your rights and freedoms.
Request restriction of processing of your personal data.This enables you to ask us to suspend the processing of your personal data in the following scenarios: (a) if you want us to establish the data’s accuracy; (b) where our use of the data is unlawful but you do not want us to erase it; (c) where you need us to hold the data even if we no longer require it as you need it to establish, exercise or defend legal claims; or (d) you have objected to our use of your data but we need to verify whether we have overriding legitimate grounds to use it.
Request the transfer of your personal data to you or to a third party.We will provide to you, or a third party you have chosen, your personal data in a structured, commonly used, machine-readable format. Note that this right only applies to automated information which you initially provided consent for us to use or where we used the information to perform a contract with you.
Withdraw consent at any time where we are relying on consent to process your personal data.However, this will not affect the lawfulness of any processing carried out before you withdraw your consent. If you withdraw your consent, we may not be able to provide certain products or services to you. We will advise you if this is the case at the time you withdraw your consent.
If you wish to exercise any of these rights you will need to contact us using the contact details above. In the case of exercising your right to access, you will also need to provide appropriate evidence of your identity.
If you decide to exercise one or more of these rights please note that it may mean that we have to terminate any agreement we have with you as we may no longer be able to provide the service you requested.
If a Client and a Tradesperson set up a transaction using the PongoPay App, these Escrow Instructions (“Escrow Instructions”) apply.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site.
1. DIGITAL SIGNATURE
By submitting a job proposal, clicking to “Accept and Proceed” following a review of a job proposal or to fund any milestone (to make a Funding Approval), Client and Tradesperson are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept the engagement, pursuant to Electronic Communications Act 2000 (ECA 2000) and the electronic identification, authentication, and trust services regulation (eIDAS 2016). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print these Escrow Instructions. All references to the Escrow in these Escrow Instructions will include the initial Funding Approval and any additional Funding Approval for an Escrow Contract.
2. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and Tradesperson irrevocably authorize and instruct Pongo Payments Ltd, incorporated in Scotland with its registered offices at Eden Park House, Eden Park, Cupar, Scotland KY15 4HS (“we”, “our” or “us”) to release applicable portions of the Escrow Account (each portion, a “Release”) to their Tradesperson Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Tradesperson’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.
2.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
Client clicks to release funds to Tradesperson;
Client does not take any action for 3 (three) days from the date of a Tradesperson’s Release request, in which case Tradesperson and Client agree that we are authorized and irrevocably instructed to immediately release to Tradesperson the amount associated with to the applicable milestone in connection with such Release request;
Tradesperson cancels the contract before a milestone payment has been released to Tradesperson, in which case the funds are to be returned to the Client;
Client and Tradesperson have submitted joint written instructions for a Release to either Tradesperson Escrow Account or Client Escrow Account, as applicable;
Client and Tradesperson agree to close the contract without release of funds, in which case the funds are to be returned to the Client;.
Both Client and Tradesperson have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Resolution Procedure, in which case the funds are released as per the Pongo Payments Ltd. mediator decision;
Client or Tradesperson has failed timely to respond to a Dispute Assistance notification as required by the Dispute Resolution Procedure, in which case the funds are released to the User that has participated;
Client or Tradesperson otherwise has failed to comply with the Dispute Resolution Procedure, in which case the funds are to be released to the User that has complied with the Dispute Assistance Program;
Submittal of a final award of an arbitrator appointed pursuant to the Dispute Resolution Procedure, in which case the funds will be released in accordance with such award;.
Issuance of the final order of a court of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order;
We believe, in our sole discretion, that fraud, an illegal act, or a violation of our Terms of Service has been committed or is being committed or attempted, in which case Client and Tradesperson irrevocably authorize and instruct us to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment;
The appointed PongoPay Mediation Team believe that they have sufficient evidence to make a final decision on a dispute that has been raised without suggesting arbitration.
3. INSTRUCTIONS IRREVOCABLE
On the occurrence of a Release Condition, Client and Tradesperson are deemed to and hereby agree that the instruction made to us to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to us to pay a Tradesperson is irrevocable. Such instruction is Client’s authorization to transfer funds to Tradesperson from the Client Escrow Account. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Tradesperson, we will instruct MANGOPAY to transfer funds to the Tradesperson and that we and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once we or MANGOPAY have charged Client’s Payment Method, the charge is non-refundable.
By agreeing to these Instructions, you agree that the PongoPay Mediation Team has the right to make a final irrevocable decision on any dispute that has been raised and has the right to transfer funds in accordance with the Dispute Outcome.
4. DORMANT ENGAGEMENTS
To be fair to Clients and Tradespersons, we have a procedure for Escrow Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Escrow Funding, Escrow Release, Escrow Refunds, Funding requests, Release requests, requests to close the Contract, Status Report submittals, or actions under the Dispute Resolution Procedure.
A “Dormant Engagement” is a Contract that has an Escrow Account with a balance but has had no activity for 180 consecutive days after the last milestone date contained in the business terms. Dormant Engagements are subject to the following rules:
We will notify Client when the Contract becomes Dormant (“Dormant Date”);
If no activity other than Release requests has occurred within seven (7) days after the Dormant Date, we will notify the Tradesperson that the Fixed-Price Contract is Dormant;
If neither Tradesperson nor Client take any action for seven (7) days after the Dormant Date, Tradesperson and Client agree that we are authorized and irrevocably instructed to instruct MANGOPAY to immediately release Escrow Funds to Client;
If Tradesperson submits a Release request and client does not take any action for fourteen (14) days from the date of the Release request, Tradesperson and Client agree that we are authorized and irrevocably instructed to immediately release to Tradesperson the amount related to the milestone with Release request;
All funds released to Tradesperson under this Section, Dormant Engagements, will be subject to the applicable Service Fees.
5. REFUNDS AND CANCELLATIONS
Client and Tradesperson are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Client or Tradesperson can cancel the contract at any time by clicking to close the contract. If funds are held in escrow, refunds and cancellations must be initiated by Client or Tradesperson by following the steps below.
Pursuant to the User Agreement, we charge Tradespersons a Service Fee for each payment their Client makes to the Tradesperson on a Service Contract. This will be 1.9% of all fees collected by Tradesperson from Client.
5.2 CANCELLATION BY TRADESPERSON
If Tradesperson wants to cancel a contract with funds held in escrow, Tradesperson must click to close the contract. When Tradesperson clicks to close the contract, Tradesperson and Client agree that we are authorized and irrevocably instructed to instruct MANGOPAY to immediately release to Client all Escrow Funds associated with the contract.
5.3 CANCELLATION BY CLIENT
If Client wants to cancel a contract with funds held in escrow, Client must click to close the contract. Tradesperson must either approve or dispute the Client’s cancellation within 7 days. If Tradesperson approves the cancellation, Tradesperson and Client agree that we are authorized and irrevocably instructed to instruct MANGOPAY to immediately release to Client all escrow funds associated with the contract. Tradesperson must dispute the Client’s cancellation via support ticket within 21 days. If Tradesperson takes no action within 21 days from the date notification of the cancellation is sent to Tradesperson, Tradesperson and Client agree that we are authorized and irrevocably instructed to immediately release to Client all Escrow Funds associated with the contract. If Tradesperson disputes the cancellation, Tradesperson and Client will be offered Pongo Payments Ltd. Dispute Assistance (as defined in Section 6).
6. DISPUTE ASSISTANCE PROGRAM
If Client and Tradesperson fail to come to a mutual resolution by way of the Refund and Cancellation process as stated in Section 5, Pongo Payments Ltd. provides this Dispute Resolution Procedure as a mechanism to resolve the Dispute.
6.1 DEFINITIONS AND KEY DATES
“Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 6.
“Arbitration Payment” means Client’s or Tradeperson’s applicable portion of the costs of Arbitration as more particularly described in this Section 6.
“Arbitration Limitations Date” means the date 14 days after the PongoPay mediator has suggested arbitration.
“Dispute” means a dispute between a Client and Tradesperson concerning a Fixed-Price Contract and covered by this Dispute Resolution Procedure.
“Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.
“Dispute Resolution Procedure” means the Dispute resolution procedure set forth in this Section 6.
“Pongo Payments Ltd. Dispute Assistance” means the Dispute assistance provided by Pongo Payments Ltd. as set forth in this Section 6.
6.2 AVAILABILITY OF PONGOPAY DISPUTE ASSISTANCE
Dispute Assistance is only available: (i) after initial funding of the Escrow Account associated with the Contract, and (ii) prior to the Dispute Assistance Deadline. Dispute Assistance is not available to either the Tradesperson or the Client via the Site after the Dispute Assistance Deadline.
6.3 PONGO MEDIATION
Pongo Payments Ltd. will first attempt to assist Client and Tradesperson by reviewing the Dispute and, where possible, providing a final decision on the Dispute Outcome. You agree that PongoPay has the right to make the final decision on a dispute outcome and has the right to transfer funds in accordance with the Dispute Outcome decision.
The Pongo Disputes team will notify Client and Tradesperson by providing a notice of dispute along with a request for information and supporting documentation (if any).
If both Client and Tradesperson respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available in the app that pertains to the Dispute. After review, the Disputes team will provide a final decision on the Dispute Outcome based on the results of the review.
If the PongoPay mediator is unable to provide a Dispute Outcome, he will suggest external arbitration.
If either Client or Tradesperson disagree with the Dispute Outcome, then the Client or Tradesperson must request in writing that the Dispute Outcome is deferred to External Arbitrators. This request must be submitted in writing within 5 days of receiving the Dispute Outcome. The PongoPay mediator reserves the right to deny this request.
If neither party requests External Arbitration and the PongoPay mediator does not suggest it, the Client and Tradesperson agree that Pongo Payments Ltd. is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the Dispute Outcome decided by the PongoPay mediator.
If the Client or Tradesperson requests to arbitrate by notifying Pongo Payments Ltd. and the PongoPay mediator accepts this request, it is the responsibility of both parties to appoint a mutually agreeable Arbitrator within 10 days.
If both parties are not able to agree on an external Arbitrator, PongoPay will appoint an Arbitrator.
If the Client or Tradesperson does not make any Arbitration Payments, the Tradesperson and Client will be deemed to have irrevocably authorized and instructed Pongo Payments Ltd. to, and Pongo Payments Ltd. will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Pongo Payments Ltd. will close the Dispute.
If Client and Tradesperson both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Tradesperson will be deemed to have authorized and instructed Pongo Payments Ltd. to make a final decision on the dispute.
6.4 ARBITRATION FOR A FIXED-PRICE CONTRACT
If arbitration has been suggested or requested in accordance with these Escrow Instructions and you are not the party that requested Arbitration, you agree to submit to the Arbitration and pay your share of the Arbitration fees detailed below. In any Arbitration, each of you and the other Member is a “Dispute Party,” and collectively you are the “Dispute Parties.”
Any such Arbitration will be conducted by a neutral third-party Arbitration service.
6.5 FILING THE CASE WITH THE ARBITRATOR
After the parties have appointed an Arbitrator, we will provide the arbitrator with supporting documentation including but not limited to the documents submitted to us during the dispute resolution process, information available via the App, and access to the App.
6.6 LIMITATIONS PERIOD FOR ARBITRATIONS
If both Tradesperson and Client fail to demand binding Arbitration for an unresolved Dispute by the Arbitration Limitations Date, then Cient and Tradesperson will be deemed to have irrevocably authorized and instructed us to, and we will make a final decision on the dispute.
6.7 ARBITRATION FEES
In the case of arbitration, 50% of arbitration fees will be covered by the Tradesperson and 50% of arbitration fees will be covered by the Client.
6.8 ARBITRATION AWARD
You agree that the arbitrator is authorized to decide the Dispute within its discretion. You agree that the arbitrator’s award is final, that it may be entered in and enforced by any court of competent jurisdiction, and that if the arbitrator delivers notice of any award to us, then we have the right to treat such notice as conclusive and act in reliance thereon.
6.9 SERVICE FEES FOR ESCROW FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE
All Escrow Funds released under this program are subject to the normal Service Fees associated with Escrow Accounts, as detailed in the User Agreement and applicable Escrow Instructions.
All notices to a User required by these Escrow Instructions will be made via email sent us to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with us., for checking their email and for responding to notices sent us to the User’s registered email address
8. COOPERATION WITH THE DISPUTE ASSISTANCE PROGRAM
All claims, disputes or other disagreements between you and another User that are covered by the Dispute Resolution Procedure must be resolved in accordance with the terms in the Dispute Resolution Procedure. All claims filed or brought contrary to the Dispute Resolution Procedure will be considered improperly filed, and we will have the right to take any other action, including suspension or termination of your Account, and any other legal action as we deem appropriate in our sole discretion.
We, in our sole discretion, reserve the right to suspend or terminate your Account immediately upon giving notice to you if we believe you may be abusing the Dispute Resolution Procedure or as otherwise permitted by the Terms of Service. However, any Disputes for any Contracts that existed prior to termination will be subject to the Terms of Service.
10. LIMITATIONS OF LIABILITY
You agree that a final Dispute Outcome by a PongoPay mediator is irrevocable and final. We are not liable for the recovery of any funds that have been released to either party as part of the Dispute Assistance Programme, should a decision by a PongoPay mediator be overruled by a court of competent jurisdiction.
Software License Agreement
IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you and Pongo Payments Ltd. and its affiliates (“PongoPay”, “we”, or “us”). This EULA governs your use of the PongoPay software and any third party software that may be distributed therewith (collectively the “Software”). PongoPay agrees to license the Software to you (personally and/or on behalf of your employer) (collectively “you” or “your”) only if you accept all the terms contained in this EULA. By installing, using, copying, or distributing all or any portion of the software, you accept and agree to be bound by all of the terms and conditions of this EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1. CONDITIONAL LICENSE
1.1. LICENSE GRANT
Subject to your compliance with the terms and conditions of this EULA, PongoPay grants you a non-exclusive, non-transferable right to use the executable code version of the Software for your use solely in connection with work you perform on or through the App.
1.2. RESTRICTIONS ON USE
You agree not to modify, display, adapt, translate, loan, distribute, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software. You may not publish, redistribute, sublicense or sell the Software or any information or material associated with the Software. You may not rent, lease or otherwise transfer your rights to the Software. You may not use the Software in any manner that could damage, disable, overburden or impair the App, nor may you use the Software in any manner that could interfere with any other party’s use and enjoyment of the App. You agree that you will use the Software for lawful purposes and only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws. In addition, you shall not perform, nor release the results of any testing of the Software to any third party without the prior written consent of PongoPay. You also agree not to remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices contained within or accessed in conjunction with or through the Software.
1.3. INTELLECTUAL PROPERTY RIGHTS
The Software is licensed, not sold, to you for use pursuant to the terms of this EULA. All rights not expressly granted to you are reserved to PongoPay or its licensors or third party providers. You acknowledge that PongoPay or its licensors or third party providers own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to the Software, portions thereof, or any information or material provided through or in conjunction with the Software. Your rights to use the Software shall be limited to those expressly granted in this Section 1. All rights not expressly granted to you are reserved by PongoPay, its licensors or third party providers. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all other proprietary rights, and all applications, registrations, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
Subject to your compliance with the terms and conditions of this EULA, PongoPay grants you a non-exclusive, non-transferable right to use the executable code version of the Software for your use solely in connection with payments you process on or through the App.
2. DISCLAIMER OF WARRANTIES
2.1. “AS IS”; NO WARRANTY
THE SOFTWARE IS PROVIDED BY PONGOPAY AND ANY OF OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS “AS IS,” WITH NO WARRANTIES WHATSOEVER. PONGOPAY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPUTER PROGRAMS ARE INHERENTLY COMPLEX, AND THE SOFTWARE MAY NOT BE FREE OF ERRORS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. PONGOPAY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE.
2.2. PRIVACY DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY LAW, PONGOPAY DISCLAIMS LIABILITY IN THE EVENT OF THE UNAUTHORIZED ACCESS TO OR MISAPPROPRIATION OF YOUR PERSONAL INFORMATION OR PRIVATE COMMUNICATIONS BY THIRD PARTIES.
2.3. JURISDICTIONAL LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE OR TO THE MINIMUM PRESCRIBED BY LAW. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
2.4. SURVIVAL OF DISCLAIMER
The provisions of this Section 2 and of Section 3 shall survive the termination of this EULA, but this shall not imply or create any continued right to use the Software after termination of this EULA.
3. LIMITATION OF LIABILITY
3.1. LIMITATION OF LIABILITY
IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL PONGOPAY, OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF THE SOFTWARE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (EVEN IF PONGOPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE, FROM THE PERFORMANCE OR MISPERFORMANCE OF THE SOFTWARE, FROM INABILITY TO USE THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
3.2. DAMAGES CAP
EXCEPT AS LIMITED BY APPLICABLE LAW, REGARDLESS OF THE BASIS FOR YOUR CLAIM, PONGOPAY’S, LICENSORS’ AND THIRD PARTY PROVIDERS’ TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE AMOUNT OF FEES PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM, OR ONE GBP (£1.00), WHICHEVER IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING PROVISIONS SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR MONETARY DAMAGES IN RESPECT OF ANY BREACH OF OR DEFAULT UNDER THIS AGREEMENT BY PONGOPAY.
To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless PongoPay and its subsidiaries, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents, from any claim or demand made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the Software or its features, any alleged violation of these terms, or any alleged violation of any applicable law or regulation. PongoPay reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse your indemnity obligations.
5. NO NOTICE OF UPDATES
PongoPay reserves the right to modify or change this EULA from time to time without notice to You. The latest version will be available on the Site. PongoPay also may update or modify the Software from time to time at its discretion. Your election to continue use of the Software, after the date of posting of these modifications to the EULA or to the Software constitutes acceptance of those modifications. If you do not agree with the modifications, do not use the Software.
6. EXPORT CONTROLS
You are responsible for complying with trade regulations and both foreign and domestic laws.
This EULA is effective as soon as you install, use, copy or distribute the Software and shall continue until it is terminated by PongoPay or you, as provided for under the terms of this Section. Unless otherwise agreed to in writing with us, either you or we may terminate the contractual agreement represented by this EULA at any time upon notice to the other party. This EULA, including without limitation your right to the Software as specified in Section 1, terminates immediately and without notice from PongoPay if you fail to comply with any of its provisions. Upon termination you shall immediately discontinue use of and destroy the Software and all copies or portions thereof, including any master copy, and within ten (10) days certify in writing to PongoPay that all copies have been destroyed.
7.1. SURVIVAL OF TERMINATION
Sections 1.3, 2, 3, 4, 7, 8.2 and 9 of these terms will survive any termination of this EULA. The termination of this EULA does not limit PongoPay’s other rights it may have by law.
8.1. SEVERANCE WAIVER
If for any reason a court of competent jurisdiction finds any provision or portion of this EULA to be unenforceable, it shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force.
You agree that, on PongoPay’s request, you will certify in writing your compliance with the terms of this EULA.
You may not assign this EULA or sublicense, assign, transfer or delegate any right or duty hereunder, without the prior written consent of PongoPay, at our sole discretion. Notwithstanding the foregoing, PongoPay may assign or transfer this EULA or any rights granted hereunder without your prior consent. This EULA is binding on and will inure to the benefit of the parties successors and permitted assigns.
8.4. ENTIRE AGREEMENT
This EULA and the terms expressly incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Optional Service Contract
Optional Service Contract Terms (“Optional Service Terms”)
Users who enter into a Service Contract in the App with another User are free to agree to these Optional Service Terms in whole or in part, or to agree to different or additional terms for their Service Contract(s). However, if and to the extent that the Users who are party to a Service Contract have not agreed to different terms, then they agree to incorporate these Optional Service Terms. Users may not, by agreement amongst themselves, alter the rights or responsibilities of PongoPay or Paybase, including any provision of the Escrow Instructions, or agree to any terms that would violate the Terms of Service. Neither PongoPay, Paybase, nor any affiliate of PongoPay is a party to any Service Contract by or between Users regardless of whether these Optional Terms are incorporated.
You acknowledge and agree that Users have discretion whether to contract with each other and will negotiate and determine the specific terms of their Service Contracts with each other. The Optional Service Contract Terms is a sample only, which may not be appropriate for all Service Contracts and which may be adjusted and added to as Users deem appropriate. Users choose whether to use the Optional Service Terms in whole or in part.
Capitalized terms not defined in these Optional Service Terms are defined elsewhere in the Terms of Service, or have the meanings given to such terms on the Site.
Client and Tradesperson identified in the App under each User’s profile information are the parties to the Services Contract. The address of each party is the address entered in the profile information in the App. PongoPay is not a party to the Service Contract.
Client and Tradesperson agree that the Tradesperson is performing services as an independent Tradesperson and that Tradesperson is not an employee or agent of Client. Tradesperson will perform the Tradesperson Services in a professional and workmanlike manner and will timely deliver any agreed upon Services. The manner and means of performing the Tradesperson Services will be determined and controlled solely by Tradesperson, which is engaged by Client as an independent Tradesperson. Tradesperson agrees to
A. Carry out the work set out in the work details carefully and competently;
B. Use materials which are of satisfactory quality and suitable for their intended purpose;
C. Be responsible for any damage the Tradesperson may cause to the premises and its
contents or to neighbouring properties;
D. Leave the working areas in a clean and tidy condition after finishing the work;
E. Keep to all the Tradesperson’s legal duties and responsibilities.
The terms concerning the services to be performed under the Job Description and Payment Stage Description outlined by the Tradesperson and agreed upon by the Client during the Job Creation Process form part of the Service Contract. Any Additional Work Details to be considered in this agreement including Building Contracts or other documents such as Specifications or Drawings should be initialled and dated by both Tradesperson and Client before accepting the terms of the Service Contract.
Users agree that, once accepted, the terms of the Service Contract cannot be modified by a User without obtaining the consent of the other before making changes to the Service Contract, including by adding additional or different Payment Stages, by closing a Service Contract, or making other changes to the Service Contract in the App. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract or accept such changes by continuing to work on the Service Contract.
The Client will do the following:
(a) Give the Tradesperson access to the premises during the agreed working hours throughout the working period;
(b) Keep the working areas sufficiently clear of obstructions to allow the Tradesperson to carry out the work;
(c) Allow the Tradesperson to carry out the work in an order which he considers necessary to finish the work on time.
3. RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS, INCLUDING AGENCY MEMBERS
If a User subcontracts with or employs third parties to perform Tradesperson Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. Further, at all times a User that agreed to perform services under a Services Contract remains responsible for the quality of the services and represents and warrants that any employee or subcontractor has entered into agreements with such employees and subcontractors on confidentiality and intellectual property at least as strong as those in these Optional Service Terms.
4. TERMINATION OF A SERVICE CONTRACT
Once a Client has funded the Escrow Account for the engagement, absent a full refund to Client by Tradesperson, the Service Contract does not terminate until the Tradesperson Services are completed. However, either Client or Tradesperson has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Tradesperson from the escrow account for the Engagement except in the following circumstances:
(a) If the Tradesperson:
(i) is not at the premises regularly to carry out the work; or
(ii) is not meeting his health and safety and environmental responsibilities; or
(iii) is so incompetent or careless that the work is of an unacceptable standard; and does not make a reasonable attempt to correct the matter within fourteen (14) days of receiving Building Issue Submission or Request for Tradesperson Action from the Client, the Client can end this contract by Raising a Dispute in the App and completing the Dispute Mediation Process.
(b) If the Client:
(i) prevents or obstructs the Tradesperson from carrying out the work;
and does not correct the matter within seven (7) days of receiving communication from the Tradesperson, the Tradesperson can end this contract by Raising a Dispute in the App and completing the Dispute Mediation Process.
5. OWNERSHIP OF WORK PRODUCT
Upon Tradesperson’s receipt of full payment from Client, the Work Product will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. Tradesperson hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.
6. HEALTH AND SAFETY
6.1 The Tradesperson will take all practical steps to:
(i) prevent or minimise health and safety risks to the Client and other people living in or visiting the premises;
(ii) minimise environmental disturbance, nuisance or pollution from the work; and
(iii) make sure that any temporary protection for the work is safe and weatherproof.
6.2 The Client will:
(i) take notice of all warnings the Tradesperson gives about any health and safety or environmental risks which he is taking measures to prevent or minimise; and
(ii) not knowingly allow people living in or visiting the premises, particularly children, to be exposed to any dangers from the work.
7. PRODUCT GUARANTEES
The Tradesperson will give the Client any guarantees issued by the manufacturers of products installed in the work.
Before the work starts:
8.1 The Client will tell his household insurers, if any, that he is about to have work done at the premises;
8.2 The Tradesperson will have an “all risks” insurance policy to cover himself and the Client for the full costs of damage to the work and to unfixed materials which are on the premises before being used in the work;
8.3 The Tradesperson will have an up-to-date public liability policy for death or injury to people and damage to property; and
8.4 The Tradesperson should fill in the box below to show the amount insured for any one claim arising from one event.
9. CONFIDENTIAL INFORMATION
To the extent a Client or Tradesperson provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Tradesperson Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Tradesperson); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Tradesperson Services.
“Engagement” means an engagement for Tradesperson Services that a Tradesperson provides to a Client under a Service Contract on the Site.
“Escrow Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
“Tradesperson” means any person who entered into a Service Contract to perform Tradesperson services for a Client.
“Tradesperson Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Tradesperson for a particular Service Contract.
“Tradesperson Services” means all services performed for or delivered to Clients by Tradespersons.
“Service Contract” means, as applicable, the contractual provisions between a Client and a Tradesperson governing the Tradesperson Services to be performed by a Tradesperson for Client for an Engagement
“Work Product” means any tangible or intangible results or deliverables that Tradesperson agrees to create for, or actually delivers to, the Client as a result of performing the Tradesperson Services.
“Job Description” means the description of works entered in the PongoPay App by the Tradesperson in the Job Creation Process which describes the work to be carried out.
“Payment Stage Description” means the description of works to be carried out for each Payment Stage in the PongoPay App.
“The Job Creation Process” means the process of creating a new Job in the PongoPay App.
“Additional Work Details” means any arrangements agreed upon by the Tradesperson and the Client out with those agreed upon in the App during the Job Creation Process.
“Building Issue Submission” means an issue raised by submitting a form in the Building Issues section of the App.
“Request for Tradesperson Action” means issues raised by submitting a form in the Request Tradesperson Action section of the App; usually in response to a payment request made by Tradesperson.