General Terms & Conditions
THESE SERVICES TERMS AND CONDITIONS (THE “AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU, THE INDIVIDUAL OR ORGANIZATION THAT SIGNED UP TO OUR PLATFORM (THE “CUSTOMER”) AND (A) IF YOU ARE ESTABLISHED IN THE UNITED STATES OR IN ANY JURISDICTION OUTSIDE THE UNITED KINGDOM: SUMMITQWEST GROUND INC., WITH REGISTERED ADDRESS DAYTON, MONTGOMERY, OH 45475-1735, PO BOX 751735, USA; OR (B) IF YOU ARE ESTABLISHED IN THE UNITED KINGDOM: SUMMITQWEST GROUND LIMITED, WITH REGISTERED ADDRESS 1 BRASSEY ROAD, OLD POTTS WAY, SHREWSBURY, SHROPSHIRE, UNITED KINGDOM, SY3 7FA (THE “COMPANY”, AS APPLICABLE). THE COMPANY AND THE CUSTOMER SHALL EACH BE REFERRED AS A “PARTY” AND TOGETHER, THE “PARTIES”.
BY OPENING AN ACCOUNT (AS DEFINED BELOW), SIGNING UP TO THE PLATFORM, EXECUTING THIS AGREEMENT, OR OTHERWISE BY OPERATING, ACCESSING OR USING THE PLATFORM (AS DEFINED BELOW): (I) YOU WARRANT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION (I.E., THE CUSTOMER); AND (II) YOU AND THE CUSTOMER EXPRESSLY AND EXPLICITLY ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
WHEREAS the Company is part of a group of companies that develop and are proprietors of an online software transportation management platform, which is comprised of a mobile application (“Mobile App”) and a web application that is offered on a software-as-a-service (SaaS) basis (“Web Interface”). The Mobile App and Web Interface, including any software code, dashboard, algorithms, utility, application programming interfaces, tools, reports and analytics capabilities and any service provided via the Mobile App and/or Web Interface (the “Services”) shall be collectively referred to herein as the “Platform”; and
WHEREAS the Customer wishes to allow its Permitted Users (such as employees, as further defined below), to download, access and use the Mobile App, and to access the Web Interface, for its internal business needs, and the Company agrees to grant the Customer and its Permitted Users the right to download, access and use the Mobile App and access and use the Web Interface, all subject to the terms of this Agreement.
NOW, THEREFORE, the Parties desire to set forth herein their agreements with respect thereto and agree as follows:
1. The Platform.
1.1 Account. In order to access and use the Platform, the Customer must open an account through the Company’s website at www.hqtravel.com (the “Site”) and provide certain information to the Company. The Customer may authorize any person (such as an employee) to use the Platform in connection with the Customer’s account (“Permitted User(s)”), and additional Platform accounts will be opened (provided that the email address used the open the account is of the same domain name as that of the Customer) for each Permitted User. The Customer and each Permitted User’s account on the Platform shall hereinafter be referred to as an “Account”. The Customer is and shall remain fully liable for each Permitted User’s use of the Platform and their Account.
The Company may, from time to time and at its sole discretion, impose terms, conditions and limitations on use of the Platform, including by way of different subscription plans, and including limitations on the number of Permitted Users which may use the Platform in connection with the Customer’s Account, in each case as expressly specified on our Site. Such additional terms, conditions and limitations are hereby incorporated herein by reference.
The Customer hereby acknowledges and agrees: (i) to keep Account login details and passwords secured at all times, and otherwise comply with the terms of this Agreement; (ii) to remain solely responsible and liable for the activity that occurs in any Account and for any breach of this Agreement and/or Vendor Terms (as defined below) by a Permitted User or otherwise; (iii) to provide full and accurate Account information, and update the Company immediately upon any change thereto; and (iv) to promptly notify Company in writing if Customer becomes aware of any unauthorized access or use of the Account or the Platform.
Neither the Customer nor any Permitted User may assign or transfer their rights or delegate their duties under any Account without the prior written consent of the Company. The Company cannot and will not be liable for any loss or damage arising from any failure of the Company or any Permitted User to safeguard their mobile device and/or their Account credentials. Cancelling any Account will cause the loss of certain information included in the Account and/or the capacity of the Account, and the Company does not accept any liability for such loss.
1.2 License. Subject to the terms of this Agreement, the Company hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable (in accordance with the terms of this Agreement) right to: (a) allow Permitted Users (as defined below) to download, access and use the Mobile App, for the purposes of ordering Transportation Services (as defined below) and other services which may be made available via the Mobile App, in each case solely in connection with the Customer’s use of the Platform and subject to each Permitted User’s acceptance and compliance with the TOU (as defined below); and (b) access and use the Web Interface, on a Software-as-a-Service (SaaS) basis, for the Customer’s internal business purposes, including the ordering of Transportation Services (as defined below).
The term “Platform” shall include the Mobile App, the Web Interface and any webapp, application programing interface (API), documentation, content, object code, results of the Services, GUI and updates, upgrades or new versions thereof. It is hereby clarified that the Company reserves the right to add, remove and update features and functionality of the Platform at any time and at its sole discretion.
1.4 The Mobile App. The Company does not represent or warrant that the Mobile App will be supported by all devices and operating systems and the Company disclaims any responsibility and liability, and the Customer disclaims any right to claim, in this regard. The Company is responsible for ensuring that all Permitted Users comply at all times with the terms of the TOU, shall be fully liable for breach of the TOU by any Permitted User, and shall fully indemnify the Company for any damages that the Company may incur as a result of a Permitted User’s violation of the TOU. If any Permitted User’s employment by or engagement with the Customer is terminated, the Customer shall be solely responsible for notifying the Company of the same (including removing the Permitted User’s privileges to access the Mobile App via the Web Interface), and ensuring that the Permitted User uninstalls the Mobile App from their mobile device, and the Company shall not be liable for any charges incurred by the Customer hereunder, including with respect to Transportation Services, following termination of the Permitted User’s engagement or employment by the Company, for any reason.
1.5 Use by Affiliates. If the Customer allows Customer’s Affiliate to access and use the Platform, Customer shall: (i) provide each such Affiliate with a copy of this Agreement; (ii) ensure that each such Affiliate complies with the terms and conditions therein; and (iii) be responsible for any breach of these terms and conditions by any such Affiliate. “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with you, where “Control” means ownership, directly or indirectly, of 50% or more of the voting interest.
1.6 Updates. The Company is not obliged to provide the Customer with any update, upgrade, new version and/or additional features of the Platform that may be released by the Company during the Term and such may be subject to additional fees. For the avoidance of doubt, the provisions of this Agreement shall apply to any such update, upgrade, new version and/or additional features of the Platform.
1.7 Services. Unless explicitly stated herein, the Company is under no obligation to provide support, professional services, training, maintenance, modifications or customizations of the Platform under this Agreement.
1.8 Links to Third Party Sites and Services. Certain links provided within the Platform permit its users to leave the Platform and enter third party sites, apps and/or services. Those linked sites, apps and services are provided solely as a convenience, they are not under the control of the Company and the Company is not responsible for the availability of such external sites, apps and services, and does not endorse and is not responsible or liable for any content or services contained therein, nor for their privacy practices and/or any other practices. Access to, use of and reliance upon any such sites, apps, services and content and dealings with such third parties are at the Customer/Permitted User’s sole risk and expense.
1.9 Interactive Areas. The Platform may contain areas in which Permitted Users may share information, chat, send messages and post reviews (“Interactive Areas”). The Customer and Permitted Users are solely responsible for their use of such Interactive Areas. The Company is not liable for any statements, representations or content provided in the Interactive Areas.
2. Transportation Services.
2.1 Nature of the Platform. The Platform is intended, amongst others, for allowing the Customer and its Permitted Users to order/schedule transportation services from third party vendors, such as Curb and Lyft (collectively, “Transportation Services” and “Vendor(s)”, respectively). Neither the Company, nor any of its affiliates, provide such Transportation Services, in any capacity, and any and all Transportation Services ordered/consumed by the Customer and/or by any Permitted User are subject to the terms and conditions of the Vendor of the relevant Transportation Services (“Vendor Terms”), which apply only between the Vendor and the Customer and/or any Permitted User. The Company may change, from time to time, the Vendors and/or Transportation Services available via the Platform, at any time and at its sole discretion, without notice to Customer and/or any Permitted User.
2.2 Charges. Charges for any Transportation Services (“Transportation Services Fees”) are determined by the Company, on a case-by-case basis, subject to fees and prices charged by Vendors (which are determined at their sole discretion and in accordance with the Vendor Terms). It is hereby clarified that the Transportation Services Fees includes certain fees charged by the Company at its discretion, in addition to the Vendor fees. Vendors and/or the Company may change the Transportation Services Fees at any time and at their sole discretion. Additional optional charges, such as those related to additional stops, tips, baggage charges, etc. will be added to the Transportation Services Fees. The Customer is solely responsible for maintaining its own independent policy with respect to charges that Permitted Users are permitted to incur via the Platform (e.g., if Permitted Users are allowed to add tips to their ordered Transportation Services Fees), and shall be solely responsible for informing Permitted Users of such policy and enforcing it. The Company is not responsible for any fees incurred by a Permitted User, by way of breach of the Customer’s policy, or otherwise. The Company shall not be liable for any Transportation Services Fees charged by Vendors, including those resulting from fraudulent or other unpermitted activity on the part of a Permitted User’s use of their Account, and any dispute with respect thereto shall be resolved between the Customer and the relevant Vendor directly, and without the Company’s involvement.
2.3 Transportation Services Disclaimer. THE COMPANY DOES NOT PROVIDE TRANSPORTATION SERVICES AND IS NOT A TRANSPORTATION CARRIER. ALL TRANSPORTATION SERVICES ARE PROVIDED ON A STRICT “AS-IS” AND “AS-AVAILABLE” BASIS. THE COMPANY DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY VENDOR, AND CUSTOMER EXPRESSLY WAIVES AND RELEASES, ON ITS AND EACH PERMITTED USER’S BEHALF, THE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED IN ANY MANNER TO THE VENDOR AND/OR THE VENDOR TERMS AND/OR THE TRANSPORTATION SERVICES AND/OR CUSTOMER USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO CUSTOMER BY THE PLATFORM. THE COMPANY DOES NOT ASSUME ANY OF THE RESPONSIBILITIES OR LIABILITY FOR THE TRANSPORTATION SERVICES AND DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, COMMITMENTS, OBLIGATIONS AND LIABILITIES WITH RESPECT TO THE TRANSPORTATION SERVICES. ALL WARRANTIES, REPRESENTATIONS, COMMITMENTS, OBLIGATIONS AND LIABILITIES RELATING TO THE TRANSPORTATION SERVICES ARE SET FORTH IN THE RELEVANT VENDOR TERMS, AND APPLY SOLELY BETWEEN THE CUSTOMER AND/OR PERMITTED USER AND THE VENDOR. THE QUALITY OF THE TRANSPORTATION SERVICES SCHEDULED THROUGH THE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE VENDOR WHO ULTIMATELY PROVIDES SUCH TRANSPORTATION SERVICES TO CUSTOMER AND/OR PREMITTED USERS.
FOR THE AVOIDANCE OF DOUBT, IT IS UP TO THE VENDOR (INCLUDING THE VENDOR’S DRIVERS OR VEHICLE OPERATORS) TO OFFER AND OPERATE THE TRANSPORTATION SERVICES WHICH MAY BE SCHEDULED THROUGH THE PLATFORM. THE COMPANY SOLEY OFFERS INFORMATION AND A PLATFORM TO OBTAIN SUCH TRANSPORTATION SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO CUSTOMER BY VENDORS.
WITHOUT DEROGATING FROM THE GENERALITY OF THE FORGOING, THE CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT MONITOR ANY VENDOR’S ON-GOING COMPLIANCE WITH ANY VENDOR TERMS AND/OR ANY LICENSING REQUIREMENTS AND/OR PERMITTING RULES AND REGULATIONS, AND COMPANY WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A VENDOR’S FAILURE TO MAINTAIN A CURRENT LICENSE AND/OR PERMIT AND/OR COMPLY WITH ANY APPLICABLE LAW AND/OR THE VENDOR TERMS.
THE SOLE RESPONSIBILITY FOR THE DECISIONS THE CUSTOMER OR ANY PERMITTED USER MAKE REGARDING THE TRANSPORTATION SERVICES RESTS SOLELY WITH THE CUSTOMER. .
THE COMPANY IS NOT A THIRD PARTY BENEFICIARY OF ANY VENDOR TERMS AND IS NOT RESPONSIBLE FOR ENFORCING THEM IN ANY MANNER. ANY DISPUTE RELATING TO THE TRANSPORTATION SERVICES, MUST BE RESOLVED BETWEEN THE CUSTOMER AND/OR PERMITTED USER, AND THE RELEVANT VENDOR DIRECTLY. THE COMPANY WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN CUSTOMER AND ANY VENDORS AND IS NOT OBLIGATED TO TAKE PART IN ANY SUCH DISPUTE AND THE CUSTOMER HEREBY WAIVES ANY CLAIM AGAINST THE COMPANY WITH RESPECT TO ANY DISPUTE ARISING BETWEEN THE COMPANY AND/OR ANY VENDOR, FOR ANY REASON.
2.4 Violations. The Customer acknowledges that Permitted Users may be suspended or banned from use of the Platform due to future or past violations of the Vendor Terms and/or TOU (“Violations”), and that Company shall have no obligation or liability related to a Permitted User that is unable to obtain or maintain an Account due to Violations. In the event that a Permitted User’s Account is suspended or terminated pursuant to the Vendor Terms, such Permitted User’s access to the Platform shall also be suspended.
2.5 Information. The Company will collect certain information from Vendors with respect to the Transportation Services, and such will be presented via the Platform. It is hereby clarified that information relating to Transportation Services scheduled/consumed by any Permitted User will be made available to the Customer, and the Customer shall be exclusively responsible for: (a) obtaining all consents from Permitted Users and other data subjects and providing them with all privacy notices under applicable law; (b) taking all measures to ensure the lawfulness of collection, access, use and processing of such information by the Customer, under applicable laws. Customer agrees to use the information contained within the Account, or any reports provided via the Platform solely for legitimate business purposes.
3. Fees; Payment Terms.
3.1 Transportation Services Fees. Customer must provide the Company with details of a valid payment method (as made available by the Company via the Platform), including: (i) a corporate payment card, (ii) a Customer-issued individual payment card, or (iii) a personal payment card, through which the Transportation Services Fees will be charged. The Transportation Services Fees are charged immediately or shortly after completion of each Transportation Service booked via the Platform (i.e., after each ride). The Customer may provide one payment method for all Transportation Services Fees charged to its Account (i.e., all Transportation Services Fees incurred by all Permitted Users will be charged to the same card) or different payment methods for each Permitted User. All Transportation Services Fees are non-refundable.
If any charge of Transportation Services Fees is rejected, or any payment method provided hereunder is invalidated, the Customer and its Permitted Users’ access to the Platform shall be immediately suspended until all Transportation Services Fees are settled and a new valid payment method is provided by the Customer. The Company reserves the right to pursue any and all remedies available to it under applicable law, in the event of any unpaid Transportation Services Fees. Customer agrees that Customer is responsible for all Transportation Services Fees incurred by Permitted Users via their Account, regardless of whether or not such Transportation Services Fees were authorized by Customer.
3.2 Payment Processors. Payments of Transportation Services Fees will be processed via certain third party online payment service providers (“Online Payment Processors”). The Company may add or change the Online Payment Processors in its sole discretion. The Online Payment Processors enable the Customer and Permitted Users to send payments securely online using a credit card, debit card or bank account. The Company does not control and is not affiliated with such Online Payment Processors. These Online Payment Processors are independent contractors and have no employment or agency relationship with the Company. The Company is not responsible in any way for the actions or performance (or lack thereof) of the Online Payment Processors. The use of the Online Payment Processors is at the Customer and/or Permitted Users’ own risk.
3.3 Payment Terms. Any amount not paid when due shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. All taxes, withholdings and duties of any kind payable with respect to Customer’s use of the Platform under this Agreement, other than taxes based on Company’s net income, shall be borne and paid by Customer.
4. Prohibited Uses.
Except as expressly permitted herein, without the prior written consent of Company, Customer must not, and shall not allow any Permitted User or any other third party to, directly or indirectly: (i) modify, incorporate into or with other software, or create a derivative work of any part of the Platform; (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with or to anyone else; (iii) copy, distribute or reproduce the Platform for the benefit of third parties; (iv) disclose the results of any testing or benchmarking of the Platform to any third party, or use such results for Customer’s own competing software development activities or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Company’s business; (v) modify, disassemble, decompile, reverse engineer, revise or enhance the Platform or attempt to discover the Platform’s source code or the underlying ideas or algorithms of the Platform; (vi) use the Platform in a manner that violates or infringes any rights of any third party, including but not limited to, right of privacy, proprietary rights or intellectual property rights of any third parties including without limitation copyright, trademarks, designs, patents and trade secrets; (vii) remove or otherwise modify any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed, incorporated, included or attached to the Platform nor copy any local agent, documentation or any written materials accompanying the Platform; (ix) use the Platform for any purpose other than for the purpose for which the Platform is designated for or other than in compliance with the terms of this Agreement; (x) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce limitations on the use of the Platform; (xi) use any automated means to access the Platform; (xii) integrate the Platform (or any part thereof) into Customer’s hardware or systems other than as instructed by the Company; (xiii) ship, transfer, or export the Platform into any country, or make available or use the Platform in any manner, prohibited by applicable laws (including without limitation export control laws, as applicable); (xiv) violate or abuse log-in and/or password protections governing access to the Platform; (xv) allow any third party other than the Permitted Users to use the Platform; (xvi) access, store, distribute, or transmit during the course of its use of the Platform any malicious code (e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system), or unlawful, threatening, obscene or infringing material; and/or (xvii) use the Platform in any other unlawful manner.
5. Customer Data; Analytics Information.
5.1 Customer Data. The operation of the Platform and the provision of the Services require the Company to monitor, analyze and process certain data from the Customer’s Account (the “Customer Data”). As between Company and Customer, the Intellectual Property Rights (as such term is defined below) and all other right, title and interest of any nature in and to the Customer Data shall remain the exclusive property of Customer. The Company shall be considered granted a non-exclusive, sub-licensable (to Company’s affiliates and vendors), royalty-free and fully paid-up license to use the Customer Data for the purpose of operating the Platform. Customer represents and warrants that Customer has the right and has obtained all rights required under any applicable laws (including but not limited to privacy laws) to provide Company the license granted in Section 5.1 to use such Customer Data in accordance with its terms; and (ii) Customer will use the Platform and Services in compliance with any applicable laws, including without limitation privacy protection laws.
5.2 Results. The Platform includes a Web Interface that provides the Customer, inter-alia, with access to reports which are comprised of the results of processing the Customer Data by the Platform (“Output Data“). The Customer is solely and exclusively responsible: (i) for all actions it takes in response to the Output Data; (ii) to thoroughly review the Output Data, check for any alerts or warnings issued by the Platform, address the findings specified in the Output Data, and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as the Customer deems appropriate as a result of the Output Data. The Company is not responsible or liable for the Customer’s use of the Output Data.
5.3 Anonymous Non-identifiable Analytics. The Company may collect, disclose, publish and use in any other manner anonymous information which is derived from the use of the Platform and/or the Customer Data (e., non-identifiable information, aggregated and analytics information that does not identify an individual person) (collectively, “Analytics Information“), in order to provide and improve the Company’s Platform, for R&D purposes and for any other legitimate business purpose. The Company is and shall remain the sole owner of the Analytics Information.
6.1 The Platform. As between the Parties, the Platform is not for sale and is and shall remain Company’s sole property. All right, title, and interest, including any Intellectual Property Rights evidenced by or embodied in, attached, connected, and/or related to the Platform and/or the Services and any and all derivative works, improvements, enhancements, updates, upgrades and customizations thereof or thereto are and shall remain owned solely by the Company or its licensors. This Agreement does not convey to Customer any interest in or to the Platform but only, as aforesaid, a limited revocable right to use the Platform, in accordance with the terms of this Agreement, and nothing herein constitutes a waiver of the Company’s or its licensor’s Intellectual Property Rights under any law. “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
6.2 Third Party Software Components. The Platform may include third party software that is subject to open source licenses (“Third Party Components”). A list of Third Party Components is available in the Platform or its documentation and will be updated from time to time. The Customer’s right to use such Third Party Components as part of the Platform is subject to any applicable acknowledgements and license terms accompanying such Third Party Components. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Platform or any portion thereof (except for the Third Party Components contained therein) be deemed “open source” or “publicly available” software. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components, and Customer may seek a complete machine-readable copy of their corresponding source code, by contacting the Company.
6.3 Feedback. If Customer or any Permitted User contacts Company with feedback data (g., questions, comments, suggestions or the like) regarding the Platform (collectively, “Feedback”), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into the Platform and/or other current or future products or services of the Company (without the Customer’s approval and without further compensation to the Customer), provided that such Feedback is used on an anonymous basis and does not identify the Customer and/or the Permitted User.
Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. For the avoidance of doubt, a recipient Party may disclose the other Party’s Confidential Information to its officers, employees, services providers or advisors solely on a “need to know” basis, and provided that they are bound by similar nondisclosure obligations as those of this Agreement. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of its disclosing Party.
8. Reference Customer.
Customer agrees that the Company may identify Customer as a user of the Platform and use Customer’s trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Company on Company’s website or social media accounts for promotional purposes.
9. WARRANTIES AND DISCLAIMER OF WARRANTIES.
9.1 Warranties. Customer represents and warrants that: (i) it will use the Platform in compliance with any applicable laws; and (ii) it obtained all applicable governmental permits or certifications which may be required for its use of the Platform. Each Party represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) that the execution and performance of this Agreement will not conflict with any obligations it has towards third parties, or violate any provision of any applicable law.
9.2 IN ADDITION TO ANY DISCLAIMER INCLUDED HEREIN, AND OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW THE PLATFORM (INCLUDING ANY OUTPUT DATA AND ANY SERVICES OFFERED VIA THE PLATFORM) AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THIS AGREEMENT, THE COMPANY DOES NOT WARRANT THAT THE PLATFORM (INCLUDING THE OUTPUT DATA) WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE PLATFORM’S OPERATION WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FALSE-POSITIVES FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER SOFTWARE LIMITATIONS. WITHOUT DEROGATING FROM THE FOREGOING, COMPANY SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S DETERMINATION WHETHER TO ACT ON THE BASIS OF ANY OUTPUT DATA AND FOR ANY OUTCOMES OF SUCH DECISION.
9.3 TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
10. LIMITATION OF LIABILITY.
10.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS EMPLOYEES, CONTRACTORS, AGENTS, DIRECTORS, SHAREHOLDERS, LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS (COLLECTIVELY, “COMPANY’S REPRESENTATIVES”) SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL), SUFFERED BY ANY PERSON, ARISING FROM, RELATED TO, AND/OR CONNECTED TO, THIS AGREEMENT, ANY USE OF OR INABILITY TO USE THE PLATFORM AND/OR THE OUTPUT DATA, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE COMPANY AND THE COMPANY’S REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH THE CUSTOMER’S USE OR INABILITY TO USE THE PLATFORM AND/OR THE OUTPUT DATA SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
The Customer agrees to defend, indemnify and hold harmless the Company and Company’s Representatives from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) the Customer’s and/or Permitted Users’ breach of applicable law, and any warranties, obligations and undertakings under this Agreement; (ii) Customer’s and/or Permitted Users’ breach of any Vendor Terms, (iii) Customer’s use of any Permitted Users’ personal information included in the Platform; (iv) Violations; and/or (v) a third party claim, suit or proceeding alleging that the use of the Customer Data within the scope of this Agreement infringes, or may infringe, any right of any third party.
12. Term and Termination.
12.1 Term. This Agreement shall enter into force and effect upon the date of first opening and Account, signing up to the Platform via the Site, using the platform, or otherwise executing this Agreement, and shall remain in full force and effect until terminated in accordance with terms of this Section 12 (the “Term”).
12.2.1 Convenience. Unless explicitly stated otherwise on the Site with respect to the relevant plan subscribed to by the Customer, each Party may terminate this Agreement by thirty (30) days prior written notice to the other Party.
12.2.2 Material Breach. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) ten (10) days after having received written notice thereof.
12.2.3 Distress Event. In the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, and such event is not cancelled within 30 days, the other Party shall have the right to immediately terminate this Agreement.
12.2.4 Effects of termination. Upon termination or expiration of this Agreement: (i) Company will cease from providing the Services hereunder, the licenses granted to Customer under this Agreement shall expire, and Customer shall discontinue all further use of the Platform; (ii) Customer shall immediately permanently delete all copies of the documentation provided by the Company (if any) in Customer’s possession or control; (iii) the receiving Party shall immediately return and/or permanently delete (as instructed by the disclosing Party) the Confidential Information, other than Confidential Information that the recipient is required to retain by law, regulation or governmental order; and (iv) any sums paid by the Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by the Customer to Company under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration of the Agreement. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it under applicable law.
13.1 General. This Agreement and any and all Disputes (as defined below) arising out of its subject matter or formation (including non-contractual disputes or claims) will be governed by and interpreted in accordance with the laws of the jurisdictions set forth in this Section. The Customer hereby submits to the exclusive jurisdictions and venue described in this Section for purposes of any action or proceeding. ANY “DISPUTE” THAT IS NOT RESOLVED THROUGH THE INFORMAL DISPUTE RESOLUTION PROCESS DESCRIBED BELOW SHALL BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION. “Dispute” is defined as any disagreement, cause of action, claim, controversy, or proceeding between you and The Company related to or arising out of this Agreement. Dispute is to be given the broadest possible meaning that will be enforced.
13.2 Informal Dispute Resolution. If a Dispute arises, the Customer agrees to first give notice to the Company and engaging in good faith negotiations to attempt to resolve any Dispute for at least thirty (30) days, except that the Parties may skip this informal negotiation procedure for Dispute enforcing, protecting, or concerning the validity of intellectual property rights.
13.3 Binding Arbitration. If the Parties don’t reach an agreed upon solution pursuant to the dispute-resolution contemplated in Section 13.2, the Parties each agree that any Dispute arising out of or relating to the Services and/or the Platform and/or this Agreement and/or the TOU, or the breach, enforcement, interpretation or validity thereof, shall be determined by binding arbitration before one arbitrator. The arbitrator will be mutually selected by the Parties.
13.4 Fees. The filing fees to begin and carry out arbitration will be shared between the Parties, but in no event shall the fees ever exceed the amount allowable by JCAA, JAMS, ICC, as applicable based on the Registered Corporate User’s registered territory (collectively, the (“Rules“). This does not prohibit the arbitrator from giving the winning Party their fees and expenses of the arbitration when appropriate pursuant to the Rules.
13.5 Authority of the Arbitrator. In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Any award may also be challenged if the arbitrator awards any relief that could not be awarded under the laws of the state or jurisdiction in which the arbitration is held or in which the award is to be enforced. Except for the foregoing, the arbitrator’s decision will be binding and final upon the Parties, except for a limited right of appeal under the Rules. In addition, the arbitrator may award declaratory or injunctive relief only in favor of the Party seeking relief, and only to the extent necessary to provide relief warranted by that Party’s individual claim. Any court with jurisdiction over the Parties may enforce the arbitrator’s decision.
13.6 Exceptions to Arbitration. Notwithstanding anything to the contrary in this Section, the Parties retain the right to apply to any court of competent jurisdiction for injunctive relief and/or provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have Disputes submitted to arbitration as provided in this Agreement.
13.7 Waiver of Jury Trial. THE CUSTOMER WAIVES ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. The Parties are instead electing to have claims and disputes resolved by arbitration. In any litigation between the Parties over whether to vacate or enforce an arbitration award, THE CUSTOMER WAIVES ALL RIGHTS TO A JURY TRIAL, and elects instead to have the dispute be resolved by a judge.
13.8 Class Action Waiver. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. The Customer may not act as a class representative, nor participate as a member of a class of claimants, with respect to any Disputes. Disputes may not be arbitrated on a class or representative basis.
13.9 United States. Where the Registered Corporate User is located in the United States of America, this Agreement will be governed by and interpreted in accordance with the laws of the State of New York, excluding that body of law related to choice of laws and the United Nations Convention on Contracts for the International Sale of Goods. The seat of the arbitration shall be New York City, NY. The arbitrator must be a retired federal or state judge who worked as a judge in the state where the arbitration will take place and must also be experienced with the subject matter of the arbitration. If, after 60 days of good faith meet and confer efforts, the Parties are unable to agree on an arbitrator, either Party may petition a court with proper jurisdiction to appoint an arbitrator: (a) pursuant to a process whereby the court provides the Parties with a panel of five (5) potential arbitrators meeting the requirements herein for an arbitrator, each Party strikes one arbitrator, and the court appoints the arbitrator from the remaining arbitrators on the panel based on the arbitrator’s qualifications and expertise, and the requirements of this Agreement; or (b) pursuant to the arbitrator selection process provided in the JAMS Streamlined Arbitration Rules and Procedures (“JAMS“) to be applied as applicable to each Registered Corporate Use. For purposes of this Section, good faith meet and confer efforts require that each Party propose at least three arbitrators who meet the qualifications described herein. The selected or appointed arbitrator must hear the matter on consecutive business days without interruption, except in the event of a bifurcation or agreement of the parties. The arbitration shall be administered pursuant to JAMS rules.
13.10 Other Territories. Where the Registered Corporate User is located in any territory outside the United States of America, the Agreement will be governed by and interpreted in accordance with laws of England and Wales. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with the said Rules. The arbitral tribunal shall be composed of one (1) arbitrator. The seat of the arbitration shall be London, England. The arbitration shall be conducted in the English Language.
This Agreement represents the complete agreement concerning the subject matter hereof and shall supersede any and all prior agreements and understandings relating thereto. This Agreement may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, the Company may assign this Agreement without the consent of the Customer in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Company will not be liable for any delay or failure to provide the Platform resulting from circumstances or causes beyond the reasonable control of the Company (e., force majeure events). This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
BY ACCEPTING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, THAT YOU ARE AUTHORIZED TO REPRESENT THE CUSTOMER AND ENTER INTO THIS AGREEMENT AND YOU AGREE ON BEHALF OF THE CUSTOMER TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.