For Business – General Terms and Conditions
As of October 1, 2020
These for General Terms for Business (“General Terms”) are hereby accepted and agreed to by the company identified within the Business sign-up process (“Company”) and constitute a legally binding agreement between Company and , a Indian Company.
These General Terms set forth the terms and conditions under which Company may establish an for Business corporate account (“Corporate Account”), which makes available to Company through the Dashboard in connection with one or more Products, as set forth herein. Company’s access to and use of the Dashboard in connection with any Product is subject to these General Terms and each applicable Product Addendum, as may be modified or updated by from time to time, effective upon posting an updated version of these General Terms and/or the applicable Product Addendum on the website. will provide Company with notice of any such modifications or updates through the email has on file and/or through the Dashboard. The company is responsible for updating contact information through the Dashboard and regularly reviewing the Dashboard, General Terms, and any applicable Product Addendum for updates and information. Continued use of the Service or any Product after any such modifications or updates shall constitute the Company’s consent to such changes. Capitalized terms used but not otherwise defined in the General Terms shall have the respective meanings ascribed to such terms in the applicable Product Addendum.
Definitions.
The following terms, as may be used in the Agreement, shall have the meanings set forth below: “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of that Affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that Affiliate on any distribution by it of all of its income or the majority of its assets on a winding up of Company.
“Authorized User” shall mean an individual authorized to use and link to the Company’s Corporate Account, or an individual that is authorized to use Services in connection with the Corporate Account, as such term is used in the applicable Product Addendum. “Data Protection Law” means all laws and regulations applicable to the personal data under the Agreement, including as applicable the laws and regulations of the USA, China, African nations, Asia, the European Union, the European Economic Area, and their member states, Switzerland and the United Kingdom and other Commonwealth members, including the EU General Data Protection Regulation (2016/679) (GDPR). “End User Terms” shall mean the terms and conditions applicable to all users of the Service, available at www..com, as may be updated by from time to time. “Personal Data” means any information in connection with this Agreement that can reasonably be used to identify an individual, or that may otherwise be considered personal data “Service Fee” shall mean the service fees applicable to User Charges and/or Company’s use of the Services, if any, as set forth in a Product Addendum or otherwise agreed to between and Company. “ App” shall mean ’s mobile application or mobile website required for use of the Service, as may be updated by from time to time. “ Service” shall mean ’s technology service that, when used in conjunction with the App or the Dashboard, as applicable, enables users and Administrators to request inspections on a bidding basis from independent third-party providers. “User Charges” shall mean charges incurred by Authorized Users or Administrators, as may be the case, for inspections or other services obtained through the use of the Service, including any charges that may be due for a particular use of the Service. The terms “controller”, “data subject”, “personal data”, “processing” and “processor” as used in this Agreement have the meanings given in the GDPR.
Term and Termination.
This Agreement shall commence upon the Company’s acceptance of the Agreement and shall remain in effect until terminated as set forth herein (the “Term”). Either party may terminate this Agreement or any Product Addendum with or without cause upon five (5) days’ advance written notice to the other party. Termination of one Product Addendum shall not terminate any other Product Addendum then in effect. All Product Addenda shall automatically terminate upon the termination of these General Terms. All outstanding payment obligations and Sections 1, 2, 5, 8- 12 of these General Terms shall survive the termination of this Agreement.
Account Administration.
Company Dashboard and Access to Products.
Upon execution of this Agreement, will establish a Corporate Account that will enable it to access the browser-based online dashboard for Business, which includes access to each Product that the Company has agreed to utilize through a Product Addendum (“Dashboard”). ’s contact with the Company shall be by way of any individual representative designated by the Company as an “administrator” through the Dashboard (“Administrator”). In addition to the Dashboard features described in an applicable Product Addendum, the Dashboard will enable the Company to (a) view each Product that it has accepted and agreed to utilize through a Product Addendum; (b) view inspection details or other service information, which may include, depending on the Products being used, without limitation, Authorized Users’ names together with status, job references, products, inspection addresses, deadlines, bid amounts, the scope of work, Inspectors’ names, and inspector data (e.g. names, telephone numbers, e-mail addresses) (“Dashboard Data”), (c) prepare and review activity reports using such Dashboard Data, (d) add and remove Administrators, (e) manage and update the Company’s credit card on file, (f) review and manage payment statements, and (g) settle outstanding balances on the Corporate Account. reserves the right to add, remove, and update features and functionality of the Dashboard at any time. agrees to use commercially reasonable efforts to provide the Dashboard to the Company as set forth herein.
Administration.
The company may appoint additional administrators at its discretion. The company agrees to (a) maintain all dashboard login credentials in confidence, (b) only permit an authorized administrator to access the dashboard, and (c) update as necessary all information of the lead administrator and other authorized administrators to ensure that it is current, accurate, and complete. The company shall be responsible for all activity that occurs under its dashboard login credentials.
Authorized user and administrator updates.
It is the company’s sole responsibility to keep and maintain an accurate list of current Authorized Users or administrators authorized to bill user charges to the company’s corporate account for each separate product.May review the current list of authorized users and administrators, as may be the case, from time to time via the dashboard to maintain and support theservice and to ensure compliance with this agreement.
Responsibility for user activity.
The company agrees that (a) the company is responsible for all user charges incurred by Authorized Users and administrators via the corporate account, regardless of whether or not such User Charge was authorized by the company. Further, the company agrees that shall not be responsible for user charges incurred by an authorized user or administrator, as may be the case, after the company has attempted removal of such authorized user or administrator from the Corporate.
Account to the extent the company provides incomplete or inaccurate authorized user or administrator removal information via the dashboard. Finally, as between the company and administrators, the company shall be responsible for the user charges incurred due to fraudulent or other unpermitted activity on the part of an Authorized User’s or administrator’s use of the Corporate Account to access services. The company shall notify promptly upon discovery of fraudulent or unpermitted activity occurring under the company’s account.
Restrictions.
The company agrees to use the Corporate Account and Dashboard solely as set forth in this Agreement. The company shall not, and shall not authorize others to, (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or underlying technology, methodologies, or algorithms of the Dashboard, Service, or App, except to the extent allowed by applicable law, (b) sublicense, lease, rent, sell, give, or otherwise transfer or provide the Service or App to any unaffiliated third party, (c) upcharge, increase, or otherwise modify the User Charges for any usage of the Service, or App to any additional fees or charges on an Authorized User related to the use of the Dashboard or Service. reserves all rights not expressly granted to the Company or a third party, including Authorized Users, under this Agreement.
Fees and Monthly Billing.- User Charges / accepted bids/payment process.
User Charges and Service Fees applicable for each Product shall be as set forth in the applicable Product Addendum. Accepted bids or “deals” struck between the user and the inspector are payable upfront and are non-refundable. Non-performance of the inspection for any reason whatsoever will result in a “credit” to the user for the next inspection bid and deal. Following the posting of a request for inspection by the user, the inspection bids are submitted by the inspectors. The inspection bid and inspection service are both rendered within the deadlines set forth by the user (typically between 24 and 72 hours for the bid, and up to one calendar week for the report). Upon satisfactory completion of the inspection assignment and the uploading of the report by the inspector, the payment is made by to the inspector against the invoice.
Billing Options –
Monthly Billing “in arrears” & “on account” customers
Subject to the terms and conditions of each applicable Product Addendum, May, in its sole discretion, elect to qualify the Company to receive, and the Company may then elect to pay for User Charges and Service Fees monthly incurred in connection with the applicable Product (“Monthly Billing”). If the company participates in monthly billing, it will bill Company Service Fees and user charges for the applicableproducts monthly billing, a “Monthly Statement”). All fees under each Monthly Statement shall be paid in full by the Company within thirty (30) days of receipt of such Monthly Statement.
Monthly Billing “in advance”.
Subject to the terms and conditions of each applicable Product Addendum, may, in its sole discretion, elect to qualify Company to receive, and Company may then elect to pay for User Charges or bids in advance for future inspection charges incurred in connection with the Product (“Monthly draw-downs”). If the Company participates in Monthly draw-downs, ARACUDA will debit Company User Charges for the applicable Products on an ongoing basis (followed by a “Monthly Statement”), and inform the Company duly in advance of the need to re-credit the account.
Non-Monthly
If Company does not participate in Monthly Billing, User Charges and Service Fees will be paid in accordance with the applicable Product Addendum. Payments are indexed in USD, e.g.g. online payments by all ARACUDA accredited platforms or integrated gateways, e.g.g. RazorPay, or Paypal for companies based in the USA.
Taxes.
Unless otherwise indicated on a receipt, and although bids are considered to be all-inclusive, all User Charges, each to the extent applicable, may be exclusive of applicable taxes payable by the Company, and the Company agrees to be responsible for the payment of any such taxes assessed on such User Charges, including, but not limited to, all sales, use, VAT/ GST or similar taxes, except for taxes based on ARACUDA’s income. All payments shall be processed in United States dollars. All payments are non-refundable except as may be expressly provided otherwise herein. Each party shall be responsible for its costs and expenses associated with its performance under this Agreement.
Proprietary Rights – License to Marks; Restrictions.
The term “Marks” shall mean the trademarks, service marks, trade names, logos, slogans, and other identifying symbols and indicia of the Company (“Licensor”). Company hereby grants (“Licensee”), solely during the term, a limited, royalty-free, worldwide, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use and display the Licensor’s marks. All use of a Licensor’s Marks by Licensee will be in the form and format approved by Licensor, and Licensee will not otherwise use or modify Licensor’s Marks without Licensor’s prior written consent. All goodwill related to the Licensee’s use of the Licensor’s Marks shall inure solely to the benefit of the Licensor. Marks will at all times remain the exclusive property of the Licensor. Except as expressly set forth herein, Licensor does not, and shall not be deemed to, grant Licensee any license or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved by Licensor. Company hereby grants the right to display Company’s Marks throughout the Term in accordance with this Section: (i) on ARACUDA’s website, and (ii) in any list of companies describing with whom Company has engaged in similar marketing or promotional activities, as long as such list includes at least two other companies and such use is in compliance with Company’s brand guidelines, if any. This right to use Company’s Marks shall not require prior written approval and shall continue after this Agreement is terminated unless Company provides with written notice that Company is terminating such right.
No Development.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between and Company prior to the commencement of any such activities.
Ownership.
shall remain the owner of all rights, title, and interest in and to the Dashboard, Service, and App (including, without limitation, Dashboard Data), including any updates, enhancements, and new versions thereof, all data related to the use of the Dashboard and Services, and all related documentation and materials provided or made available to the company or any proposed or current authorized user in connection with this agreement.
No publicity.
Other than as expressly set forth herein, neither party may use or reference the other party’s name, logo, trademarks, or service marks in a press release or otherwise without the prior consent of such other party in each instance.
Confidentiality.
The term “Confidential Information” shall mean any confidential or proprietary business, technical, or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with the Agreement, whether orally or in physical form. However, Confidential Information shall not include information (a) previously known by the Receiving Party without an obligation of confidentiality, (b) acquired by the Receiving Party from a third party which was not, to the Receiving Party’s knowledge, under an obligation of confidentiality, (c) that is or becomes publicly available through no fault of the Receiving Party, or (d) that the Disclosing Party provides written permission to the Receiving Party to disclose, but only to the extent of such permitted disclosure. The Receiving Party agrees that (a) it will use Confidential Information solely for the purposes permitted under this Agreement and (b) it will not disclose the Confidential Information of any third party other than the Receiving Party’s employees or agents who are bound by obligations of nondisclosure and restricted use at least as strict as those contained herein. In the event the Receiving Party receives a subpoena, administrative or judicial order, or any other request for disclosure of any Confidential Information of the Disclosing Party, the Receiving Party will give the Disclosing Party prompt written notice of such subpoena, order, or request and allow the Disclosing Party to assert any available defense to disclosure. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care.
Roles of Parties.
Each party is an independent controller of the Dashboard Data. The company will only process Dashboard Data for administrative purposes, to manage access control, and for activity review purposes.
Compliance with Data Protection Laws.
Each party shall comply with the obligations applicable to it under the Data Protection Law with respect to the processing of Personal Data.
Restrictions.
Company agrees that any Dashboard Data obtained in connection with this Agreement shall be used (a) solely for the purposes set forth in the relevant section of these General Terms, or in connection with the use of the Service, and for no other purpose unless expressly authorized in writing by , and (b) in accordance with the purposes communicated to the data subjects. The company shall not use Dashboard Data in any way that harms or that benefits a competitor of . The company agrees that it shall not disclose Dashboard Data to any third parties, except as necessary for the purposes set forth herein. The company shall not rent or sell Dashboard Data for any purpose.
Security.
The company shall implement appropriate technical and organizational measures to protect Dashboard Data against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach of the Company’s security measures (“Information Security Incident”).
Notification.
Company shall promptly notify in the event that the company learns or has reason to believe that an Information Security Incident has occurred in relation to Dashboard Data. This notification includes at least: (1) the nature of the breach of security measures, (2) the potentially compromised personal data and data subjects, (3) the duration and expected consequences of the Information Security Incident, and (4) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, Company shall (a) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident; and (b) provide with assurances reasonably satisfactory to ARACUDA that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Breach occurs as a result of an act or omission of Company, and if determines that notices (whether in ARACUDA’s or Company’s name) or other remedial measures are warranted, Company shall, at ARACUDA’s request and at Company’s cost and expense, undertake the aforementioned remedial actions.
Communications.
See the relevant section of these General Terms. Mutual
Warranties;
Mutual Warranties.
Each party hereby represents and warrants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder, (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party, and (c) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin.
Company Warranties.
Company represents and warrants that (a) Company has all rights and consents, where necessary, to provide with the Company Personal Data and any other information provided to hereunder; (b) Company will use Dashboard Data solely for legitimate business purposes including business expense, processing, accounting, and budgeting purposes; (c) is in compliance and shall remain in compliance during the Term, with all applicable local, city, state, federal, national, and international laws, rules and regulations, including those relating to data protection, privacy, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security; (d) Company will only share and provide access to Dashboard Data to Company personnel who have a business need to access such Dashboard Data; (e) Company will not disclose Dashboard Data to any third party, unless expressly authorized in writing by , and who are in each case bound by privacy and security obligations regarding Personal Data at least as restrictive as those contained herein; (f) Company will not rent or sell Dashboard Data for any purpose not authorized by ARACUDA; (g) Company will not use Dashboard Data in any way that harms or benefits a competitor of ; (h) Company’s Marks, as may be provided to pursuant to this Agreement, will not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party; and (i) that Company is not a government or quasi-government entity, or otherwise owned, controlled by, or created by a government entity. Company hereby represents that the individual clicking to accept these General Terms is authorized by the Company to bind, and does hereby bind, the Company to the terms hereof.
Disclaimer:
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ARACUDA PROVIDES THE ARACUDA SERVICE “AS IS” AND WITHOUT WARRANTY. DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DASHBOARD OF THE SERVICE WILL MEET THE COMPANY’S REQUIREMENTS OR THAT THE OPERATION OF THE DASHBOARD WILL BE UNINTERRUPTED OR ERROR-FREE. ARACUDA HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE DASHBOARD OF THE ARACUDA SERVICE, AND (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY ACKNOWLEDGES AND AGREES THAT THE SERVICE IS A TECHNOLOGY SERVICE THAT ENABLES ACCESS TO REQUEST, ON-DEMAND AND ON A BIDDING BASIS, GROUND INSPECTIONS AND SERVICES PROVIDED BY INDEPENDENT THIRD-PARTY PROVIDERS. IS NOT AN INSPECTIONS OR LOGISTICS PROVIDER. ARACUDA DOES NOT GUARANTEE THE AVAILABILITY OF INSPECTIONS OR LOGISTICS SERVICES, ON-TIME INSPECTIONS, OR ANY OTHER SERVICE LEVELS RELATED TO INDEPENDENT INSPECTIONS OR LOGISTICS PROVIDERS THAT MAY BE OBTAINED VIA THE SERVICE.
Indemnification
The “Indemnifying Party” will indemnify, defend, and hold harmless (the “Indemnified Party,” its affiliates, and their respective directors, officers, employees, agents, successors, and assigns against all claims, damages, losses, and expenses (including reasonable outside attorney fees) with respect to any third-party claim arising out of or related to (a) a breach (or claim that, if true, would be a breach) of any of the “Indemnified Party’s representations or warranties in this Agreement or any Product Addendum, or (b) the infringement of a third party’s intellectual property rights by the Indemnifying Party’s Marks, but only if such Marks have been used by the Indemnified Party in the manner approved by the Indemnifying Party.
The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without the written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at the Indemnifying Party’s expense.
Limits of Liability. OTHER THAN WITH RESPECT TO (i) A PARTY’S INDEMNIFICATION OBLIGATIONS, (ii) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7 HEREIN, OR, (iii) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN SECTION 9 HEREIN, (A) IN NO EVENT SHALL ARACUDA OR COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY COLLECTIVELY ARISING OUT OF THIS AGREEMENT AND ALL PRODUCT ADDENDUM, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ARACUDA OR COMPANY (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE COLLECTIVELY UNDER THIS AGREEMENT AND ALL PRODUCT ADDENDUM FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE GREATER OF (X) FIFTY THOUSAND DOLLARS ($50,000), AND (Y) THE TOTAL AMOUNTS PAID OR PAYABLE BY COMPANY TO HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY.
General
This Agreement shall be governed by and construed in accordance with the laws of Indian Law without regard to its choice or conflict of laws provision. Any dispute, controversy, or claim arising out of or relating to this Agreement, including its interpretation, enforceability, performance, breach, termination, or validity, including, this arbitration clause, must be settled solely and finally by confidential arbitration in Udaipur, Rajasthan, India, in accordance with the Commercial Arbitration Rules of the International Arbitration Association. An award rendered in connection with arbitration pursuant to this section shall be final and binding upon the parties, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. No provision of this subsection limits the rights of a party to this Agreement to obtain provisional, injunctive, or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any arbitration.
Neither party has the right to arbitrate on a class action basis any dispute, controversy, or claim arising out of or relating to these Terms, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including, without limitation, this arbitration clause. The
Company shall not, in its use of the Service or any Product under this Agreement, discriminate against any Authorized User, employee, volunteer, or participant, or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between and Company. The Company acknowledges and agrees that upon ’s receipt of evidence of Company’s discrimination under any of these categories, ARACUDA shall have the right to immediately terminate this Agreement following notice to Company.
Any notice required or permitted to be delivered to the Company by this Agreement shall be posted to the Company’s Dashboard. Any notice required or permitted to be delivered to ARACUDA by this Agreement shall be submitted via info@.com.
The failure of either party to enforce, at any time or for any period of time, the provisions herein, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
In the event that any provision of this Agreement, or any Product Addendum, is determined to be invalid or unenforceable by the ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement, or a Product Addendum, shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage, or other labor disturbances, war, or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the applicable agreement.
This Agreement and each of the Product Addenda may not be assigned, in whole or in part, by a party without the prior written consent of the other party. However, each party may assign this Agreement, upon notice to the other party, to (a) an Affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Agreement and all of the Product Addenda shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.
Nothing in this Agreement, or any Product Addendum, shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties, and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party.
Each party shall be responsible for the payment of it
