TERMS AND CONDITIONS
SAAS SERVICES AND SUPPORT
- 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.
- Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice.
RESTRICTIONS AND RESPONSIBILITIES
- 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.
- 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.
- 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.
- 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.
- Customer can carry out a maximum of 100 multicity search queries per agent per day.
CONFIDENTIALITY; PROPRIETARY RIGHTS
- 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.
- 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.
- 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.
- 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).
- Company shall comply with its obligations under all Privacy Laws.
In particular, Company shall:
- act only on documented instructions from Customer in respect of any Customer Data processed;
- use Customer Data only for the purpose of fulfilling its obligations under this Agreement;
- have appropriate technical and organisational measures in place against unauthorised or unlawful processing of Customer Data and against accidental or unlawful loss or destruction of, alteration or unauthorised disclosure of or access or damage to, Customer Data held or processed by it, appropriate to the harm that might result from such accidental, unauthorised or unlawful processing or loss, destruction or damage to Customer Data and the nature of the Customer Data;
- 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);
- not engage another processor without the prior written consent of Customer and where another processor is engaged (a "Sub-Processor")
The Company shall:
- ensure that the Sub-Processor complies with the obligations set out in this clause 5.3 and Privacy Laws;
- 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
- remain liable for any act or omission of any Sub-Processor in respect of its obligations arising from its processing of the Customer Data;
- 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;
- 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;
- 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;
- 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);
- 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;
- inform Customer where in its opinion any of its instructions will result in a breach of Privacy Laws;
- 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
- 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.
In this clause 4, the following terms have the following meanings:
- "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;
- “Data Controller", "Data Processor" and "Data Subject" have the meanings as set out in Data Protection Law;
- “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;
- “Personal Data” has the meaning given to that term by Data Protection Law (which may include, but is not limited to, Personal Information);
- “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
- "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.
ADVERTISING AND PROMOTION
- 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.
- 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.
PAYMENT OF FEES
- Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.
TERM AND TERMINATION
- 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.
- 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.
WARRANTY AND DISCLAIMER
- 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.
LIMITATION OF LIABILITY
- 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.
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.