1. Services; License
1.1. Subject to the terms and conditions of this Agreement, CHEQ shall provide Customer with services as specified in the Order Form (“Services“) through its proprietary technology as hosted on a third party cloud service (the “CHEQ Platform“).
1.2. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement, CHEQ grants Customer a non-exclusive, non-transferable, non-sublicenseable, limited, revocable right for Customer employees, agents, representatives and contractors who are permitted access to the Services by CHEQ (“Authorized Users“) to access the CHEQ Platform, for Customer’s internal business use, on the sites or mobile applications for which the Services are to be provided, as agreed between the parties (the “Customer Sites“) according to CHEQ’s instructions and technical documentation that have been provided to the Customer in writing (“Documentation“).
1.3. CHEQ hereby warrants, represents and covenants that: (i) the CHEQ Platform does not infringe upon any third party’s rights, including but not limited to intellectual property rights and privacy rights; (ii) CHEQ has fully complied with any third-party licenses, permits and authorizations required in connection with such CHEQ Platform; (iii) the CHEQ Platform do not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; (iv) the CHEQ Platform do not install any hidden components or bundle any additional software; and (v) CHEQ will comply with all applicable laws in its performance of this Agreement, including all applicable privacy laws and regulations.
2. Customer’s Obligations
Customer hereby undertakes to:
2.1 provide CHEQ with the information reasonably requested by CHEQ and required by the CHEQ Platform in connection with each Customer Site and keep such information updated in relation to each Customer Site. If Customer does not provide any information reasonable requested by CHEQ within seven days of such written request, and such information is necessary in order to provide the Services in connection with the Customer Site, CHEQ shall be entitled to terminate the Services in connection with such Customer Site, provided that Customer shall not be charged any fees for such Customer Site;
2.2 use the CHEQ Platform, the Services, and all related software and Documentation in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws. Each party represents and warrants that no third party agreement prevents Customer from using the CHEQ Platform as contemplated hereunder;
2.3 manage and secure all login credentials used by Authorized Users in connection with their use of the CHEQ Platform, and protect the same against unauthorized use or disclosure using reasonable standard in the industry.
3. Invoicing & Fees.
In consideration for the Services, Customer shall pay CHEQ the Fees set forth in the Order Form (“Fees“). Fees shall be invoiced and payable in accordance with the provisions of the Order Form, and if not stated in the Order Form, then Fees will be invoiced monthly in advance, and each invoice shall be due and payable 30 days from receipt of the invoice. All payments not made when due, shall be subject to a late charge of 1.5% per month compounded annually. Payment of Fees shall be made by wire transfer to the account set forth in the Order Form, or such other account as may be designated by CHEQ from time to time. Unless otherwise stated in the applicable Order Form, the Fees are exclusive of VAT.
4. Intellectual Property Rights; Confidentiality
4.1 All intellectual property rights in the CHEQ Platform, Services, Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with CHEQ. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the CHEQ Platform, Service or any part thereof for any purpose; (ii) not represent that it possesses any proprietary interest in CHEQ Platform, Service, Documentation or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest CHEQ’s intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by CHEQ, not use the name, trademarks, trade-names, and logos of CHEQ; (v) except as specifically permitted herein, not copy any part or content of the CHEQ Platform, reports or documentation other than for Customer’s own internal business purposes; (vi) not copy any features, functions or graphics of the CHEQ Platform or use it to build a competitive product or service; and (vii) not remove the copyright, trademark and other proprietary notices contained on or in CHEQ’s Platform, products, services or documentation. All intellectual property rights in the Customer Sites lie exclusively with Customer or its licensors. Customer shall take no action, directly or indirectly, to register CHEQ trademarks (or their variation), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to CHEQ to prevent the occurrence of such activity by any third parties.
4.2 Customer hereby grants to CHEQ a non-exclusive, royalty-free, perpetual, worldwide license to use, reproduce, and prepare derivative works of all data provided to CHEQ in connection with this Agreement, to permit CHEQ to perform the Services to Customer as set forth in this Agreement, and to analyze the anonymized data obtained through use of the CHEQ Platform solely for its internal use in order to improve the CHEQ Platform, all subject to CHEQ’s compliance with applicable law and privacy regulations.
4.3 For the purposes hereof, “Confidential Information” meansany proprietary or trade secret information disclosed by one party to the other which can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of Receiving Party; (ii) the Receiving Party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the Disclosing Party; (iii) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the Receiving Party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information. The “Receiving Party” means the party receiving Confidential Information. The “Disclosing Party” means the party disclosing Confidential Information.
4.4 The Receiving Party agrees (i) not to disclose the Disclosing Party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the Disclosing Party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the Receiving Party is required by legal process or applicable law, rule, or regulation to disclose any of the Disclosing Party’s Confidential Information, then prior to such disclosure, if legally allowed, Receiving Party will give prompt notice to the Disclosing Party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire three years from the date of termination or expiration of this Agreement and shall supersede any previous confidentiality undertakings between the parties.
5. Data Protection and Privacy
5.1 For the purposes of this Section 6: “Personal Data” means any data related to an End Customer or identifies an End Customer or may with reasonable effort identify an End Customer; and “Technical and Organizational Security Measures” means measures aimed at protecting Personal Data against accidental, unauthorized or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of processing.
5.2 In respect of Personal Data, the parties acknowledge that they are considered to be the “data controllers” as such term is defined in applicable laws, regulations, directives and certifications those relating to data protection and privacy (collectively “Data Protection Laws“).
5.3 Customer shall undertake that: (a) End Customers have been informed of CHEQ’s use of Personal Data as required by Data Protection Laws; (b) it has, if and to the extent applicable, obtained consents and permits from End Customers as required under Data Protection Laws ; and (c) Personal Data has been and will continue to be collected, processed and transferred by it in accordance with the relevant Data Protection Laws. CHEQ undertakes and agrees that: (a) it will process Personal Data in accordance with Data Protection Laws and it has no reason to believe that Data Protection Laws prevent it from fulfilling its obligations in regard to the processing of Personal Data; (b) it has in place appropriate Technical and Organizational Security Measures to protect the Personal Data and provide a level of security appropriate to the risk represented by the processing and nature of such Personal Data; (c) it will deal properly with reasonable inquiries from the Customer or from the law enforcement authority relating to its processing of the Personal Data; and (d) any person or third party acting under the authority of CHEQ, including a data processor, shall be obligated to process the Personal Data only on instructions from CHEQ. The parties agree processing hereunder shall be conducted in accordance with the Data Processing guidelines.
5.4 The parties will take commercially reasonable steps to limit access to only those employees, agents, subcontractors, data processors or consultants strictly necessary to perform their respective obligations under the Agreement. The Parties will have in place industry standard procedures so that any third party it authorizes to have access to Personal Data will respect and maintain the confidentiality and security of the Personal Data.
5.5 The parties will promptly notify each other about (a) any legally binding request for disclosure of Personal Data by a law enforcement authority unless otherwise prohibited and (b) any request received directly from an End Customer without responding to that request, unless it has been otherwise authorized to do so.
6. Disclaimer; Limitation of Liability.
6.1 EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, CHEQ PROVIDES THE CHEQ PLATFORM, SERVICES, AND DOCUMENTATION TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND CHEQ EXPRESSLY DISCLAIMS ALL WARRANTIES – STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF BRANDABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. CHEQ FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE CHEQ PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
6.2 Customer acknowledges that the quality and accuracy of recommendations by the CHEQ Platform are dependent on the accuracy and completeness of the information provided. CUSTOMER ACKNOWLEDGES THAT CHEQ SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY FOR FAULTS, ERRORS OR ERRONEOUS RECOMMENDATIONS PROVIDED ON THE BASIS OF UNTIMELY, INCOMPLETE, INACCURATE, FALSE OR MISLEADING INFORMATION PROVIDED BY CUSTOMER OR THE AUTHORIZED USERS.
6.3 EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, OR WITH RESPECT TO CHEQ’S INDEMNIFICATION OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CHEQ DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT CHEQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term; Termination
7.1 This Agreement shall commence on the Effective Date and will continue for the period stated in the Order Form, or unless otherwise terminated in accordance with the terms of this Section 7 (the “Term“).
7.2 Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
7.3 Upon termination of this Agreement, Customer will immediately cease use of the CHEQ Platform and any Service, each party shall return to the other party all of the other party’s Confidential Information in its possession and any outstanding Fees shall become due and payable. Sections 4, 5, 6, 8 and 9 shall survive any expiration or termination of this Agreement.
All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or email transmission with written confirmation of receipt, addressed to the address set forth in the Order Form or to such other address as any party hereto may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting.
This Agreement constitutes the entire agreement between CHEQ and Customer and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. CHEQ may change these terms from time to time, and such change will become effective upon the date in which it is posted on the CHEQ Platform. Customer is responsible for checking the website regularly for such changes. By continuing to access or use the Services Customer agrees to be bound by the revised terms. Customer shall not transfer or assign its rights or obligations under this Agreement to any third party, except to an affiliate or in the case of merger or sale of all or substantially all of the assigning party’s assets. Any purported assignment contrary to this section shall be void. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. This Agreement is governed by the laws of the State of New York, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of New York.