QuickTrip
Terms and Conditions
1. SAAS
SERVICES AND SUPPORT
o Subject
to the terms of this Agreement, Company will use commercially reasonable
efforts to provide Customer the Services. As part of the registration
process, Customer will identify an administrative user name and password for
Customer’s account. Company reserves the right to refuse registration or
to cancel passwords it deems inappropriate.
o Company
will provide Customer with reasonable technical support services in accordance
with the Company’s standard practice.
2. RESTRICTIONS
AND RESPONSIBILITIES
o Customer
will not, directly or indirectly: reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code, object code or underlying
structure, ideas, know-how or algorithms relevant to the Services or any
software, documentation or data related to the Services (“Software”);
modify, translate, or create derivative works based on the Services or any
Software (except to the extent expressly permitted by Company or authorized
within the Services); or remove any proprietary notices or labels.
o Customer
represents, covenants, and warrants that Customer will use the Services only in
compliance with Company’s standard published policies then in effect and all
applicable laws and regulations. Customer hereby agrees to indemnify and
hold harmless Company against any damages, losses, liabilities, settlements and
expenses (including without limitation costs and attorneys’ fees) in connection
with any claim or action that arises from an alleged violation of the foregoing
or otherwise from Customer’s use of Services. Although Company has no
obligation to monitor Customer’s use of the Services, Company may do so and may
prohibit any use of the Services it believes may be (or alleged to be) in
violation of the foregoing.
o Customer
shall be responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services, including,
without limitation, modems, hardware, servers, software, operating systems,
networking, web servers and the like (collectively, “Equipment”).
Customer shall also be responsible for maintaining the security of the
Equipment, Customer account, passwords (including but not limited to
administrative and user passwords) and files, and for all uses of Customer
account or the Equipment with or without Customer’s knowledge or consent.
o Customer
shall be responsible for notifying Company of any changes, including but not
limited to marketing activities, brand launches and product testing, that may
result in a material increase in the volume of API calls received by the
Company. Such notice must be provided in writing by the Customer to the
Company two (2) weeks prior to the anticipated increase in API usage.
o Customer
can carry out a maximum of 100 multicity search queries per agent per day.
3. CONFIDENTIALITY;
PROPRIETARY RIGHTS
o Each
party (the “Receiving Party”) understands that the other party (the “Disclosing
Party”) has disclosed or may disclose business, technical or financial
information relating to the Disclosing Party’s business (hereinafter referred
to as “Proprietary Information” of the Disclosing Party). Proprietary
Information of Company includes, but is not limited to, non-public information
regarding features, functionality and performance of the Service.
Proprietary Information of Customer includes non-public data provided by
Customer to Company to enable the provision of the Services (“Customer Data”).
The Receiving Party agrees:(i) to take reasonable
precautions to protect such Proprietary Information, and (ii) not to use
(except in performance of the Services or as otherwise permitted herein) or
divulge to any third party any such Proprietary Information. The
Disclosing Party agrees that the foregoing shall not apply with respect to any
information after five (5) years following the disclosure thereof or any
information that the Receiving Party can prove: (a) is or becomes
generally available to the public, or (b) was in its possession or known
by it prior to receipt from the Disclosing Party, or
(c) was rightfully disclosed to it without restriction by a third party,
or (d) was independently developed without use of any Proprietary
Information of the Disclosing Party or (e) is required to be disclosed by
law.
o Customer
shall own all right, title and interest in and to the Customer Owned Data, as
well as any data that is based on or derived from the Customer Owned Data and
provided to Customer as part of the Services, with the exception of data derived
in the process of providing the Services which is part of Company’s machine
learning algorithm. Company shall own and retain all right, title and
interest in and to: (a) the Services and Software, all improvements,
enhancements or modifications thereto; (b) any software, applications,
inventions or other technology developed in connection with Implementation
Services or support; (c) all data derived in the process of providing the
Services which is part of Company’s machine learning algorithms; and (d) all
intellectual property rights related to any of the foregoing.
o Notwithstanding
anything to the contrary, Company shall have the right to collect and analyze
data and other information relating to the provision, use and performance of
various aspects of the Services and related systems and technologies
(including, without limitation, information concerning Customer Data and data
derived therefrom), and Company will be free (during and after the term
hereof) to (i) use such information and data to
improve and enhance the Services and for other development, diagnostic and
corrective purposes in connection with the Services and other Company
offerings, and (ii) disclose such data solely in aggregate or other
de-identified form in connection with its business, including for marketing
purposes. No rights or licenses are granted except as expressly set forth
herein.
4. DATA
PROTECTION
o With
respect to the parties' rights and obligations under this Agreement, the
parties agree that, under Data Protection Law, Customer is acting as either a
Data Controller or Data Processor, and Company is acting as a Data Processor
(where Customer is acting as a Data Controller)or Data
Sub-processor (where Customer is acting as a Data Processor).
o Company
shall comply with its obligations under all Privacy Laws.
o In
particular, the company shall:
a.
act only on documented instructions from Customer inrespect of any Customer Data processed;
b.
use Customer Data only for the purpose of fulfilling
its obligations under this Agreement;
c.
have appropriate technical and organizational
measures in place against unauthorized or unlawful processing of Customer Data
and against accidental or unlawful loss or destruction of, alteration or
unauthorized disclosure of or access or damage to, Customer Data held or
processed by it, appropriate to the harm that might result from such
accidental, unauthorized or unlawful processing or loss, destruction or damage
to Customer Data and the nature of the Customer Data;
d.
ensure the on-going confidentiality, integrity,
availability and resilience of processing systems and services as well as the
ability to restore the availability and access to Customer Data in a prompt
manner in the event of a physical or technical incident as required under
Privacy Laws (including, without limitation, documenting, providing and
complying with remediation plans as appropriate and required in order to ensure
compliance with the requirements of this clause);
e.
not engage another processor without the prior
written consent of Customer and where another processor is engaged (a
"Sub-Processor") Company shall:
i.
ensure that the Sub-Processor complies with theobligations set out in this clause 5.3 and Privacy Laws;
ii.
in the case of a general consent from Customer for
use of Sub-Processors, inform Customer of any changes concerning the addition
or replacement of Sub-Processors to which Customer has the right to object; and
iii.
remain liable for any act or omission of any Sub-Processor
in respect of its obligations arising from its processing of the Customer Data;
f.
assist Customer to comply with its obligations under
Privacy Laws, including in relation to the security of Customer Data, but only
in connection with the provision of the Services;
g.
assist Customer to respond to requests by Data
Subjects to exercise their rights under Privacy Laws, including taking any
action required by Customer to comply with such requests and immediately
notifying Customer of any such requests received by it or any Sub-Processor
without responding to such requests or enquiries unless expressly otherwise
instructed by Customer;
h.
take all necessary steps to ensure the reliability of
any of its staff who have access to Customer Data processed under this
Agreement and ensure that they are subject to appropriate obligations of
confidentiality;
i.
not transmit the Customer Data to a country or
territory, other than the United States or Canada, outside of the country where
the Customer Data is received by Company without the prior written consent of
Customer, unless required to do so by an applicable law to which Company is
subject (in which case Company shall immediately inform Customer of that legal
requirement before carrying out such processing unless prohibited from doing so
under applicable law);
j.
allow a third party auditor,
appointed by the Customer, and bound by confidentiality obligations to the
Company, to audit as and when necessary, in accordance with the Privacy Laws,
the technical and organisational measures in place to ensure compliance with
the Privacy Laws;
k.
inform Customer where in its opinion any of its
instructions will result in a breach of Privacy Laws;
l.
if required by Customer, delete or return all
Customer Data in its possession or control to the extent technically feasible
save as required by any applicable law; and
m. notify
Customer as soon as possible (and in any event within 24 hours) if Company
becomes aware of any breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to,
Customer Data, and provide all information regarding such breach that Customer
specifically requests or which may reasonably be expected to be required or
appropriate in order for Customer to comply with its legal obligations under
Privacy Laws.
o In
this clause 4, the following terms have the following meanings:
a.
"Customer Data" means any and all
Personal Information and Personal Data disclosed, transferred, shared, sent, or
otherwise made available or accessible to Company by Customer or to a third
party by Customer for the purposes of this Agreement;
b.
“Data Controller", "Data
Processor" and" Data Subject" have the meanings
as set out in Data Protection Law;
c.
“Data Protection Law" means the EU Directive
95/46/EC as implemented into the national law of each Member State of the EU
and as amended, replaced or superseded from time to time including by the GDPR
and any laws implementing or supplementing such regulation;
d.
“Personal Data” has the meaning given to that
term by Data Protection Law (which may include, but is not limited to, Personal
Information);
e.
“Personal Information” has the meaning set out
in the relevant Privacy Laws and includes any information which identifies or
could be reasonably used to identify an individual, including names, addresses,
email addresses, telephone numbers, Social Security numbers, government
identification numbers, credit or debit card numbers or any other personally
identifiable information, including copies of such information, and materials
derived from such information, and any other information associated with or
linked to such information; and
f.
"Privacy Laws" means all applicable
international, federal, state, provincial and local laws, rules, regulations,
directives and governmental requirements of Australia, the UK and the USA (and
all other jurisdictions that apply to either party) relating in any way to the
privacy, confidentiality or security of Personal Information and includes Data
Protection Law.
5. ADVERTISING
AND PROMOTION
o Customer
acknowledges and agrees that the Company will have the right, but not the
obligation, to use the name of Customer’s organization in connection with the
Company’s marketing materials, but only with the prior written consent of the
Customer, not to be unreasonably withheld.
o Company
acknowledges and agrees that the Customer will have the right, but not the
obligation, to use the name of Company’s organization in connection with the
Customer’s marketing materials, but only with the prior written consent of the
Company, not to be unreasonably withheld.
6. PAYMENT
OF FEES
o Customer
will pay Company the then applicable feesdescribed in
the Order Form for the Services and Implementation Services inaccordance
with the terms therein (the “Fees”). Company reserves the right to
change the Feesor applicable charges and to institute
new charges and Fees at the end of theInitial Service
Term or then current renewal term, upon thirty (30) daysprior
notice to Customer (which may be sent by email). If Customer believesthat Company has billed Customer incorrectly,
Customer must contact Company nolater than
60 days after the closing date on the first billing statementin
which the error or problem appeared, in order to receive an adjustment orcredit. Inquiries should be directed toCompany’s customer support department.
o Company
may choose to bill through an invoice, inwhich case,
full payment for invoices issued in any given month must bereceived
by Company thirty (30) days after the mailing date of the invoice.
Unpaid amounts are subject to a financecharge
of 1.5% per month on any outstanding balance, or the maximum permittedby law, whichever is lower, plus all expenses of
collection and may result inimmediate termination of
Service. Customer shall be responsible for all taxesassociated
with Services other than taxes based on Company’s net income.
7. TERM
AND TERMINATION
o Subject
to earlier termination as provided below, this Agreement is for the Initial
Service Term as specified in the Order Form, and shall be automatically renewed
for additional periods of the same duration as the Initial Service Term
(collectively, the “Term”), unless either party requests termination at
least thirty (30) days prior to the end of the then-current term.
o In
addition to any other remedies it may have, either party may also terminate
this Agreement upon thirty (30) days’ notice (or without notice in the case of
nonpayment), if the other party materially breaches any of the terms or
conditions of this Agreement. Customer will pay in full for the Services
up to and including the last day on which the Services are provided. All
sections of this Agreement which by their nature should survive termination
will survive termination, including, without limitation, accrued rights to
payment, confidentiality obligations, warranty disclaimers, and limitations of
liability.
8. WARRANTY
AND DISCLAIMER
o Company
shall use reasonable efforts consistent with prevailing industry standards to
maintain the Services in a manner which minimizes errors and interruptions in
the Services and shall perform the Implementation Services in a professional
and workmanlike manner. Services may be temporarily unavailable for
scheduled maintenance or for unscheduled emergency maintenance, either by
Company or by third-party providers, or because of other causes beyond
Company’s reasonable control, but Company shall use reasonable efforts to
provide advance notice in writing or by e-mail of any scheduled service
disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS
THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET
FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS
IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION
OF LIABILITY
o NOTWITHSTANDING
ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED
TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS
RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER
THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR
CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY
OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL;
OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER
CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS
AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN
EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10.MISCELLANEOUS
o If
any provision of this Agreement is found to be unenforceable or invalid, that
provision will be limited or eliminated to the minimum extent necessary so that
this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by
Customer except with Company’s prior written consent. Company may
transfer and assign any of its rights and obligations under this Agreement
without consent. This Agreement is the complete and exclusive statement of
the mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements, communications and other understandings relating
to the subject matter of this Agreement, and that all waivers and modifications
must be in a writing signed by both parties, except as otherwise provided
herein. No agency, partnership, joint venture, or employment is created
as a result of this Agreement and Customer does not have any authority of any
kind to bind Company in any respect whatsoever. In any action or
proceeding to enforce rights under this Agreement, the prevailing party will be
entitled to recover costs and attorneys’ fees. All notices under this
Agreement will be in writing and will be deemed to have been duly given when
received, if personally delivered; when receipt is electronically confirmed, if
transmitted by facsimile or e-mail; the day after it is sent, if sent for next
day delivery by recognized overnight delivery service; and upon receipt, if
sent by certified or registered mail, return receipt requested. This
Agreement shall be governed by the laws of the Province of Nova Scotia, and the
federal laws of Canada applicable therein, without regard to its conflict of laws provisions and, should any dispute arise as to the subject
matter of this Agreement, the parties hereby attorn to the jurisdiction of the
courts of the Province of Nova Scotia.