“Active Beneficiary” means a Term Member who is listed under Rizort System as a current/existing/covered Beneficiary for purpose of the Services.
“Agreement” means the SaaS services agreement executed by the Company and the Customer that is governed by and subject to these SaaS T&C. Any usage of the term “Agreement” will however, where the context so permits include these SaaS T&C, its annexures, appendices and addenda as appropriate.
“Beneficiary” means individual engaged or interfacing with the Customer in any capacity whatsoever in respect of whom the Services are being rendered by the Company.
“Catalog Price” means a fixed price Reward as published in the form of a catalog by Rizort that is published via Rizort System.
“Configuration” means of the functionality within Rizort System that is accessible to the Customer to update details about its requirement or usage of the Services.
“Experience” means a recreational, therapeutic, educational or any other purpose experience as published in Rizort System that is made available by the Customer to the Beneficiary as a Reward.
“Gift Card” means a prepaid instrument (mostly represented in the form of a e-card-) issued by a Partner as published in Rizort System, that is made available by the Customer to the Beneficiary as a Reward.
“List Price” means the actual price with respect to a Reward as prescribed by the Partner.
“Partner” means the manufacturer, seller, service provider or a vendor, by whatever name called, that bears responsibility of delivering the Rewards to the Beneficiaries.
“Product” means the tangible product as published in Rizort System, that is made available by the Customer to the Beneficiary as a Reward.
“Reward” means a gift or benefit provided to a Beneficiary by the Customer by using the Service that could be in the form of a Product, Gift Card, Experience or a Vacation rendered by use of Rizort Services.
“Rizort System” means the software technology enabled platform, programs, interfaces and systems that are owned, licensed and utilized by the Company to render the Services.
“SaaS T&C” means these SaaS Terms and Conditions.
“Services” means employee loyalty solution and services rendered by the Company by use of Rizort Systems.
“Vacation” refers to a vacation package as published in Rizort System, that is made available by the Customer to the Beneficiary as a Reward.
2.1Subject to the terms of this Agreement, Company shall use commercially reasonable efforts to provide Customer the Services, which includes the subscription to Rizort System.
2.2The Customer shall have access to Rizort System to allocate Rewards to its Beneficiaries and to carry out the other functions as envisaged under this Agreement. The Customer shall be deemed to have such number of Active Beneficiaries as set out in its Configuration. Once allocated, the Beneficiaries have a specified period to redeem it, which period is set out in the Agreement.
2.3The Customer acknowledges that the Services rely on the Rewards that are ultimately delivered through Partners. While the Company has undertaken reasonable due diligence on the capabilities of the Partner, it cannot definitively ascertain and underwrite their capabilities. Each Reward shall be subject to such other terms, conditions and requirements as may be set out by the respective Partner(s) who delivers such Reward.
2.4The Customer agrees that pricing of Reward shall be determined based on the pricing system i.e. Catalog Price or List Price, as selected by it in the Agreement. If it chooses List Price, the Customer acknowledges that it shall be liable to pay additional service charge (at such rate as indicated in the Agreement) and taxes as applicable in relation to the Reward being selected.
2.5 Product Terms
a)If any selected Product is not available at the time of its redemption, the Beneficiary shall at the Company’s discretion, receive an alternate item of equivalent price or get a choice to select another Product that is of equivalent price.
b)All pictures of Product(s) are representative only and the actual Product may slightly vary vis-à-vis the picture published on Rizort System.
c)Upon redemption, Products shall be shipped promptly by the Partner.
d)Company will make good faith attempts to address any issues in the Products as faced by the Beneficiaries.
2.6 Vacation Terms
a)All Rewards that are in the form of Vacation shall be subject to black-out dates applicable to each Vacation.
b)All bookings with respect to Vacation shall be subject to a minimum advance booking period of 1 (one) month.
c)All Vacation bookings are non-refundable, non-cancellable, non-modifiable and non-transferable. Any requests for change or cancellation shall be entertained by the Company on a good faith basis subject to payment of any additional charges by the Customer and/or the concerned Beneficiary.
d)Partner Policies. The Partner’s cancellation policies may differ from the Company. If the Partner’s cancellation policies are stricter than the Company’s, the Service Provider’s cancellation policies will prevail.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1Customer agrees to comply with all applicable laws, regulations and ordinances relating to its use of the Services, Rizort System or anything related thereto.
3.2Customer 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 Rizort System, the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or Rizort System (except to the extent expressly permitted by Company or authorized within the Services); use the Services or Rizort System for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
3.3Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Customer hereby agrees not to provide to Company any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10.
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.
3.4Customer shall be responsible for ensuring that its employees, officers, representatives, vendors or other users including the Beneficiaries (“Users”) comply with the appropriate measures prescribed to access and use the Services which may be provided by the Company from time to time. If the Users need to access Rizort System by certain access credentials the process for generating them shall be communicated by Rizort to the Customer.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1Each 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 non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Customer acknowledges that it has received adequate permissions and approvals in an appropriate manner (from the User or any other person as applicable) to provide the customer Data to Rizort. 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 person 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 document (a) is or becomes generally available to the public, or (b) was in its possession or known by its 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.
4.2Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Rizort System, all improvements, enhancements or modifications thereto, including those resulting from feature request or other suggestions from the Customer, (b) any software, applications, inventions or other technology developed in connection with implementation services or support, and (c) all intellectual property rights related to any of the foregoing.
4.3Notwithstanding 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. No rights or licenses are granted except as expressly set forth herein.
5. PAYMENT OF FEES
5.1The fees for the Services are set out as platform fees payable in such frequency as set forth in the Agreement and Rewards handling and redemption fees as set out in the Agreement and the Configuration (“Fees”). The Fees are linked to the number of Active Beneficiaries as set forth in the Configuration. If Customer’s use of the Services exceeds the number of Active Beneficiary as set forth in Configuration or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. 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 the 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 thirty (30) 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.
5.2Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month or year (as applicable, based on the billing frequency of the Fees) 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 Services. Customer shall be responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income.
6. TERM AND TERMINATION
6.1Subject to earlier termination as provided below, this Agreement will be effective such period as set out in the Agreement (“Initial Service Term”), and shall be automatically renewed AT THE COMPANY’S THEN CURRENT PRICING for additional periods of the same duration as the Initial Service Term or any other renewal term duration as agreed by the Parties (collectively, the “Term”), unless either Party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2In 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 non-payment), if the other Party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within such thirty (30) days period. Customer hereby agrees to pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company shall make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete the stored Customer Data. 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.
7. WARRANTY AND DISCLAIMER
7.1Company 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 any applicable 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.
7.2Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Services; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8. LIMITATION OF LIABILITYNOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, 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 SUBSCRIPTION OF RIZORT SYSTEMS (NOT INCLDUING FEES TOWARDS REQARD HANDLING OR OTHER ALLIED SERVICES) UNDER THIS AGREEMENT IN THE TWELVE (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.
9. MISCELLANEOUSIf 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. In no event shall the Company be liable for failure or delay that is caused by any event that is caused by an act of God and/or circumstances that are beyond the reasonable control of the Company including strike, riot, fire, flood, natural disaster, pandemic, border control restrictions, change in laws etc. 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. All notices, including notices of non-renewal, shall be sent to the applicable addresses of the Parties specified in the cover page to this Agreement or to such other addresses as the Parties may designate in writing. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law’s provisions. The Parties agree that the federal and state courts located in San Francisco County, California, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to this Agreement.