Terms of Service
1st July 2021
Welcome to CARRIYO. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at firstname.lastname@example.org.
1.CLIENT’S USE OF THE SERVICE
- CARRIYO Obligations: CARRIYO shall: (i) make its Services available in accordance with the Service Level Agreement and Order Form(s) signed by Client during the Term pursuant to this Agreement; (ii) will not use Client Data except to provide the Service, or to prevent or address service or technical problems, in accordance with this Agreement and the Documentation, or in accordance with Client's instructions, and (iii) not disclose Client Data to anyone other than Authorized Parties
- Client Obligations: Client may enable access to the Service for use only by Authorized Parties solely for the internal business purposes of Client and its Affiliates in accordance with the Documentation and not for the benefit of any third parties. Client is responsible for all Authorized Party use of the Service and compliance with this Agreement. Client shall: (a) have sole responsibility for the accuracy, quality, and legality of all Client Data; and (b) prevent unauthorized access to, or use of, the Service, and notify CARRIYO promptly of any such unauthorized access or use. Client shall not; (i) use the Service in violation of applicable Laws; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) interfere with or disrupt performance of the Service or the data contained therein. Client shall be liable for the acts and omissions of all Client Affiliates relating to this Agreement.
- Fees: Client will pay CARRIYO the then applicable fees described in the Order Form for the Subscription Services and Implementation Services in accordance with the terms therein (the “Fees”). CARRIYO 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 Client (which may be sent by email). If Client believes that CARRIYO has billed Client incorrectly, Client must contact CARRIYO 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 CARRIYO’s customer support department by email through the address email@example.com.
- Invoices & Payment: Fees for the Service will be invoiced in accordance with the relevant Order Form. Except as otherwise stated in an Order Form, all fees are quoted and payable in United States dollars and are based on Service rights described herein as well as actual usage. Client shall provide CARRIYO with complete and accurate billing and contact information including a valid email address for receipt of invoices. Upon CARRIYO's request, Client will make payments via wire transfer. Except as otherwise set forth in the Order Form, all fees and other charges are due and payable to CARRIYO within thirty (30) days after the date of CARRIYO’s invoice.
- Non-cancelable & non-refundable: Except as specifically set forth to the contrary under Section 6.2 "Warranty Remedies", Section 7.1 "Indemnification by CARRIYO'', Section 9.2 "Termination", and under the SLA, all payment obligations under any and all Order Forms are non-cancellable and all payments made are non-refundable.
- Overdue Payments: Client agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts more than thirty (30) days past due, and to pay all reasonable costs, including attorneys’ fees and costs, associated with CARRIYO’s collection of past due amounts.
- Non-Payment and Suspension of Service: If Client's account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this agreement or by law, CARRIYO reserves the right to suspend the Service upon thirty (30) days written notice, without liability to Client, until such amounts are paid in full.
- Taxes: Client shall be responsible for any taxes relating to its use of the Service. Prices exclude taxes and duties. Client is responsible for all sales, use, excise, VAT, GST, duties and similar taxes and assessments and shall provide CARRIYO with certificates and documents as required to effect this section, including without limitation proof of payment of applicable taxes, if requested by CARRIYO.
- Ownership and Reservation of Rights to Client’s Intellectual Property: CARRIYO and its licensors own all right, title and interest in and to the Services, Documentation, and other CARRIYO Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, CARRIYO reserves all rights, title and interest in and to the Service, and Documentation including all related Intellectual Property Rights. No rights are granted to Client hereunder other than as expressly set forth herein.
- License Grant: CARRIYO hereby grants Client a non-exclusive, non-transferable, right to use the Service and Documentation, solely for the internal business purposes of Client and Affiliates and solely during the Term, subject to the term and conditions of this Agreement within scope of use defined in the relevant Order Form.
- License Restrictions: Client shall not (i) modify, copy or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by CARRIYO in the provision of the Service and Documentation, except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
- Ownership of Client Data: As between CARRIYO and Client, Client owns its Client Data.
- Client Input: CARRIYO shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Client Input. CARRIYO shall have no obligation to make Client Input an Improvement. Client shall have no obligation to provide Client Input.
- Aggregated Data Use: CARRIYO owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the "Aggregated Data"). Nothing herein shall be construed as prohibiting CARRIYO from utilizing the Aggregated Data for purposes of operating CARRIYO’s business, provided that CARRIYO’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event does the Aggregated Data include any personally identifiable information.
- Confidentiality: A party shall not disclose or use any Confidential Information of the other party except (i) as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement, or (ii) with the other party’s prior written permission.
- Protection: Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
- Compelled Disclosure: A disclosure by one party of Confidential Information of the other party to the extent required by Law shall not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure.
- Remedies: If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
- Exclusions: Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party. Client Data shall not be subject to the exclusions set forth in this Section.
- Protection and Security: During the Term of this Agreement CARRIYO shall use commercially reasonable efforts with respect to the security and integrity of the Client Data, consistent with industry standards and as published from time to time by CARRIYO. CARRIYO designs its Service to allow Clients to achieve differentiated configurations, enforce user access controls, and manage data categories that may be populated and/or made accessible as set forth in the Documentation. Client understands that its use of the Service and compliance with any terms hereunder does not constitute compliance with any Law. Client understands that it has an independent duty to comply with any and all laws applicable to it.
- Backup and Data Recovery: CARRIYO shall make periodic backups of Client Data and re-store Client Data lost due to CARRIYO error or disaster in accordance with CARRIYO's documented backup and recovery process as published from time to time by CARRIYO within the Security Policy. In the event that Client deletes Client Data and requires CARRIYO's assistance to restore it, CARRIYO will provide reasonable assistance at its then-current rates for such services. Throughout the Term, Client shall have the right to access and extract Client Data through the Service using the methods described in the Documentation.
6.WARRANTIES & DISCLAIMERS
- Warranties: Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technical or personal data. CARRIYO warrants that during the Term (i) the Service shall perform materially in accordance with the Documentation; and (ii) the functionality of the Service will not be materially decreased during the Term.
- Warranty Remedies: As Client's exclusive remedy and CARRIYO's sole liability for breach of the warranty set forth in Section 6.1 (i) and (ii), (a) CARRIYO shall correct the non-conforming Service at no additional charge to Client, or (b) in the event CARRIYO is unable to correct such deficiencies after good-faith efforts, CARRIYO shall refund Client amounts paid that are attributable to the defective Service from the date CARRIYO received such notice. To receive warranty remedies, Client must promptly report deficiencies in writing to CARRIYO, but no later than thirty (30) days of the first date the deficiency is identified by Client.
- DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED HEREIN, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES SET FORTH IN SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CARRIYO MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. CARRIYO DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CLIENT IN CONNECTION WITH THE PROVISION OF THE SERVICE.
- Indemnification by CARRIYO: CARRIYO shall defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings ("Claims") in each case finally awarded, made or brought against Client by a third party alleging that the use of the Service as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided, however, that Client: (a) promptly gives written notice of the Claim to CARRIYO; (b) gives CARRIYO sole control of the defense and settlement of the Claim (provided that CARRIYO may not settle any Claim unless it unconditionally releases Client of all liability); and (c) provides to CARRIYO, at CARRIYO's cost, all reasonable assistance. CARRIYO shall not be required to indemnify Client in the event of: (w) modification of the Service by Client, its Employees, or Authorized Parties in conflict with Client's obligations or as a result of any prohibited activity as set forth herein; (x) use of the Service in a manner inconsistent with the Documentation; (y) use of the Service in combination with any other product or service not provided by CARRIYO; or (z) use of the Service in a manner not otherwise contemplated by this Agreement. If Client is enjoined from using the Service or CARRIYO reasonably believes it will be enjoined, CARRIYO shall have the right, at its sole option, to obtain for Client the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to CARRIYO, then use of the Service may be terminated at the option of CARRIYO and CARRIYO's sole liability shall be to refund any prepaid fees for the Service that were to be provided after the effective date of termination
- Responsibility of Client: Client is solely responsible for the content of its Client Data. Client shall not upload Client Data that infringes the rights of, or causes harm to, a third party or violates any Law.
8.LIMITATION OF LIABILITY
- Limitation or Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO CARRIYO INDEMNIFICATION OBLIGATIONS IN NO EVENT SHALL CARRIYO AGGREGATE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE.
- Exclusion of Damages: EXCEPT WITH RESPECT TO CLIENT'S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.TERM AND TERMINATION
- Term of Agreement: The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the parties (the “Term”). Subscriptions to the Service commence on the date, and are for a period, as set forth in the applicable Order Form.
- Termination: Either party may terminate this Agreement (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon any termination by Client pursuant to this section, CARRIYO shall refund Client any prepaid fees for the affected Service that were to be provided after the effective date of termination.
- Effect of Termination: Upon any termination of this Agreement, Client shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under section 9.4). Termination for any reason shall not relieve Client of the obligation to pay any fees accrued or due and payable to CARRIYO prior to the effective date of termination. Upon termination for cause by CARRIYO or termination for convenience by Client, all future amounts due under all Order Forms shall be accelerated and become due and payable immediately.
- Retrieval of Client Data: CARRIYO will make Client Data available to Client through the Service on a limited basis solely for the purposes of Client retrieving Client Data for a period of up to thirty (30) days after termination of the Agreement. After such thirty (30) day period, CARRIYO will have no obligation to maintain or provide any Client Data and may thereafter, unless legally prohibited, delete all Client Data. Additionally, during the Term of the Agreement, Clients can extract data using CARRIYO's standard Services. If Client requires CARRIYO's assistance, Client may acquire CARRIYO professional services at CARRIYO's then-current billing rates pursuant to a separately executed Statement of Work and Professional Services Agreement. Client will determine the scope of the professional services engaged to extract data from the CARRIYO system and as such may increase or decrease CARRIYO's professional services involvement in order to control costs.
- Surviving Provisions: The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement: (i) subsection (i) of Section 1.1 "CARRIYO Obligations''; (ii) Section 3.2 "License Grant"; and (iii) any Order Form(s). All other provisions of this Agreement, which contemplate or require continued performance shall survive any termination or expiration of this Agreement.
- Relationship of the Parties: The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to this Agreement.
- Notices: All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; or (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to CARRIYO shall be addressed to the attention of its Chief Executive Officer. Notices to Client shall be addressed to Client's signatory of this Agreement. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.
- Waiver and Cumulative Remedies: No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Force Majeure: Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party's fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving CARRIYO or Client employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full, except that Client shall have no right to assign this Agreement to a direct Competitor of CARRIYO. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law: Waiver of Jury Trial: This Agreement shall be governed exclusively by the internal laws of the United Arab Emirates, without regard to its conflicts of laws rules and both parties hereby consent to the exclusive jurisdiction by the courts of Dubai, United Arab Emirates for any claim or controversy arising out of or related to this Agreement. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- Miscellaneous: This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment, however, no Order Form shall vary sections 2,4, 3.1, 3.4, 3.5, 4, 6, 7, 8, 9, or 10 of this Agreement unless the Order Form clearly states that the parties are agreeing to do so and any such variance shall be effective only with respective to that specific Order Form. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by Law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. CARRIYO may use Client's name and logo in lists of Clients, on marketing materials and on its website. This Agreement may be executed electronically, by facsimile and in counterparts, which taken together shall form one binding legal instrument.
''Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Parties” means Client’s employees and third party providers authorized to access or receive Client Data by Client (i) in writing, (ii) through the Service's security designation, or (iii) by system integration or other data exchange processes.
"Confidential Information" means (a) any software utilized by CARRIYO in the provision of the Service and its respective source code; (b) Client Data; (c) each party's business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names finances, marketing plans, business opportunities, personnel, research, development or know- how that is designated by the disclosing party as "confidential” or "proprietary" or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).
"Client Data" or "Service Data" means the electronic data or information submitted by Client or Authorized Parties to the Service. This may include data of Client’s customers as applicable.
“Client Input'' means suggestions, enhancement requests, recommendations or other feedback provided by Client or its Employees and Authorized Parties relating to the operation or functionality of the Service, excluding Client Data.
"Documentation" means CARRIYO's electronic and hardcopy documentation for the Service, including user manuals, product specifications, sales documents or any other documents produced by CARRIYO and directly associated with CARRIYO and its Services, which may be updated by CARRIYO from time to time.
"Employee" means employees, consultants, contingent workers, independent contractors, and retirees of Client and its Affiliates.
"Improvements" means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation as developed by CARRIYO and made generally available for Production use without a separate charge to Clients.
"Intellectual Property Rights" means any and all common law, statutory and other industrial property rights and intellectual property rights, including copy rights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
"Law" means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
"Order Form'' means the separate ordering documents in substantially the form attached hereto as an Exhibit, under which Client subscribes to the CARRIYO Service pursuant to this Agreement that have been fully executed by the parties and which ordering document may be entered into either by Client or one or more intermediary that is jointly and severally responsible for payment of the amounts therein, in each case for the benefit of the Client under this Agreement.
"Production" means the Client's or an Employee's use of or CARRIYO's written verification of the availability of the Service (i) to administer Employees; (ii) to generate data for Client's books/records; or (iii) in any decision support capacity.
"Service" or “Services” means CARRIYO's software-as-a-service applications as described in the Documentation and subscribed to under an Order Form.
"SLA" means the CARRIYO Service Level Availability Policy, which may be updated by CARRIYO from time to time.
"Tenant" means a unique instance of the Service, with a separate set of Client data held by CARRIYO in a logically separated database (i.e., a database segregated through password -controlled access).
"Merchant" means a sub entity within the parent Tenant, usually used to visually filter data for different business units or entities that agree to share the same Tenant.
“Total Shipments” means total number of shipments including shipments that are duplicated, in error, or failed for any other reason.