Promotion Terms and Conditions
Promotion Terms and Conditions
Last Updated: August 1 2020
These Promotion Terms and Conditions (“Promotion Terms”) are expressly incorporated into and made a part of the Promotion Agreement Cover Sheet (“Cover Sheet”) (the Cover Sheet and Promotion Terms, collectively, the “Agreement”).
2. Term and Termination.
The Agreement shall commence on the Effective Date and shall continue until the Promotion End Date specified on the Cover Sheet (the “Term”), unless earlier terminated as provided herein. Except as may be expressly agreed in the Cover Sheet, either party may terminate the Agreement in its entirety at any time, with or without cause, by giving the other party thirty (30) days’ prior written notice of termination. Either party may terminate the Agreement in its entirety upon the other party’s material breach of the Agreement if such breach, where curable, has not been cured within ten (10) days after written notice thereof to such other party. Accrued and outstanding payment obligations, Sections 1, 3, 5.2, 6 and 8–13, and the last sentence of this Section 2 shall survive the expiration or termination of the Agreement.
3. Fees and Payment.
Fees to be paid by one party to the other party in connection with the Agreement, if any, are set forth on the Cover Sheet (“Fees”). All Fees are due within twenty-four hours (1) day from receipt of an undisputed invoice sent to the party’s address identified on the Cover Sheet, and shall be paid in the currency specified on the Cover Sheet (or in Euros if no currency specified). The owing party shall be responsible for any sales, use or value-added taxes imposed by any taxing authority with respect to the Fees payable hereunder, provided that an owing party shall not be liable for any taxes related to the income of the other party. Except as may be expressly agreed in the Cover Sheet, each party shall be responsible for its costs and expenses associated with its performance under the Agreement.
4. Intellectual Property.
4.1 License to Marks; Restrictions.
The term “Marks” shall mean the trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of a party (“Licensor”). Each party hereby grants to the other party (“Licensee”), solely during the Term, a limited, royalty-free, non-exclusive, non-transferable, non-assignable (except as set forth in Section 12) license, without the right to sublicense, to use and display the Licensor’s Marks solely for the purpose of the Promotion. 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 Licensee’s use of Licensor’s Marks shall inure solely to the benefit of Licensor. Marks will at all times remain the exclusive property of the respective Licensor. Except as expressly set forth herein, Licensor does not, and shall not be deemed to, grant Licensee any licence or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved by Licensor.
4.2 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 Shoclef Corporation Limited. and Company prior to the commencement of any such activities.
The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party or any of its affiliates (“Disclosing Party”) provided to the other party or any of its affiliates (“Receiving Party”) in connection with the Agreement, whether orally or in physical form, and shall include the terms of the Agreement. However, Confidential Information shall not include information (a) previously known by Receiving Party without an obligation of confidentiality, (b) acquired by Receiving Party from a third party which was not, to Receiving Party's knowledge, under an obligation of confidentiality, (c) that is or becomes publicly available through no fault of Receiving Party, or (d) that Disclosing Party gave written permission to Receiving Party to disclose, but only to the extent of such permitted disclosure.
Except as required by applicable law, each Receiving Party agrees that (a) it will use Confidential Information of Disclosing Party solely for the purpose of the Agreement and (b) it will not disclose the Confidential Information of the Disclosing Party to any third party other than the Receiving Party's employees or agents, on a need-to-know basis, who are bound by obligations of nondisclosure and restricted use at least as strict as those contained herein, provided that Receiving Party remains liable for any breach of the confidentiality provisions of the Agreement by its employees or agents. The Receiving Party will protect the Confidential Information of the Disclosing Party 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. In the event Receiving Party receives a subpoena or other administrative or judicial demand for any Confidential Information of Disclosing Party, Receiving Party will give Disclosing Party prompt written notice of such subpoena or demand and allow Disclosing Party to assert any available defenses to disclosure. Upon request by Disclosing Party, Receiving Party will return or destroy all copies of any Confidential Information of the Disclosing Party. Confidential Information will at all times remain the property of the Disclosing Party. The provisions of this Section 5.2 will expire three (3) years after the expiration or termination of the Agreement, except with respect to Confidential Information that constitutes “trade secrets” under applicable law for which this Section 5 shall survive indefinitely.
6. Privacy & Data.
During the Term and for one (1) year thereafter, each party shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the party’s industry, in each case in such party’s place of incorporation or registration. All policies shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a party under the Agreement.
8. Warranties; Disclaimer.
Each party hereby represents and warrants that (a) it has full power and authority to enter into the Agreement and perform its obligations hereunder, (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin, (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with the Agreement, (d) it will comply with all applicable laws related to its performance of the Agreement, including, without limitation, consumer privacy and data protection laws, (e) it shall neither offer or give to a third party, nor seek or receive from any third party, directly or indirectly for itself or for any other party, any gift, payment, consideration or benefit of any kind which is or could be construed as a bribe or other corrupt practice, and (f) the content, media and other materials used or provided by such party as part of the Promotion, will not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party (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) the negligence or willful misconduct of Indemnifying Party and its employees or agents in their performance of the Agreement, (b) a breach (or claim that, if true, would be a breach) of any of the Indemnifying Party’s representations or warranties in the Agreement, (c) labour or pension claims related to this Agreement brought against the Indemnified Party by the Indemnifying Party’s employees or agents, or (d) 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 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 Indemnifying Party’s expense.
10. Limits of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR FOR A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES 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 ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. No Publicity.
Unless otherwise expressly set forth on the Cover Sheet, neither party may issue a press release or otherwise refer to the other party in any manner with respect to the Agreement, the Promotion or otherwise, without the prior written consent of such other party.
THE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND CONTROLLED BY THE LAWS OF PANAMA. Process may be served on either party by Panama mail, postage prepaid, certified or registered, return receipt requested, or by such other method as is authorized by Panama. The parties agree that Company hereby consents to the exclusive jurisdiction and venue in the District Court of Panama, which shall have exclusive jurisdiction to determine all disputes surrounding the Agreement. Any and all notices permitted or required to be given hereunder shall be sent to the address first set forth on the Cover Sheet, or such other address as may be provided, and deemed duly given (a) upon actual delivery, if delivery is by hand, (b) one (1) day after being sent by overnight courier, charges prepaid, or (c) by electronic mail to the designated recipient. The failure of either party to enforce the provisions hereof shall not be construed as a waiver of such provisions. Any modification or amendment to the Agreement shall be effective only if in writing and signed by both parties. In the event any provision of the Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect. The Agreement may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign the Agreement to (a) an affiliate of such party, or (b) upon notice to the other party, in connection with the sale of all or substantially all of such party’s equity, business or assets. The Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and permitted assigns. Any delay in or failure by either party in performance of the Agreement shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, without limitation, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage. Nothing in the Agreement shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties, and neither party shall have the right to enter into contracts on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate written agreement between the parties. Each party shall be solely responsible for its employees and agents used in connection with the Agreement. The Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersede all prior and contemporary understandings and agreements, whether oral or written, relating to the subject matter hereof. For informational purposes, this Agreement may be drawn up in other languages, it being understood that in the event of any conflict related to translation, the English version shall prevail. The Agreement may be executed in one or more counterparts and by exchange of signed counterparts transmitted electronically, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.
The following terms, as may be used in the Cover Sheet, shall have the meanings set forth below:
13.1. “Personal Shopper, Buyers and Business Users Partner” shall mean an independent contractor providing on-demand shopping and logistics services to riders using the Shoclef App under license from Shoclef Corporation Limited.
13.2. “In-App View” shall mean a unique view deployed by Shoclef Corporation Limited. within the Shoclef App through which registered users may request a ride.
13.3. “New User” shall mean an individual who downloads the Shoclef App, creates a new user account (including entering credit or debit card information), enters a Promo Code and completes a first purchase using the Shoclef App.
13.4. “Promo Code” shall mean promotional codes valid for the first-time usage of the Shoclef service provided by Shoclef to Company in the amounts and quantities provided in the Agreement.
13.5. “Promo Codes” shall mean promotional codes valid for the usage of the Shoclef service provided by Shoclef to Company in the amounts and quantities provided in the Agreement.
13.6. “Shoclef App” shall mean the Shoclef mobile application.