General. This agreement is made by CHAIZ, Inc., a Delaware Corporation whose registered address is at 256 Chapman Road STE 105-4 in the City of Newark, County of New Castle, Delaware, Zip Code 19702, USA and whose place of business is at 1608 Maple Ave, Austin, Texas, Zip Code 78702, USA (“Chaiz”) and the Customer named in the Annex.
“Acceptable Use Policy” is the policy that Chaiz makes available to the Customer that defines how Customer and other users can and cannot use the Chaiz API, the Chaiz URL and other Chaiz Intellectual Property.
“Activated Contract” means a Contract which has not been terminated within the first 31 days.
“Agreement” this agreement when signed by Chaiz and the Customer.
“Attribution” means the first interaction of a Consumer with the Service on the Customer Site.
“Authorized User” those employees, agents and independent contractors of the Customer and Customer’s End Users, who are authorized by the Customer to use the Services and any Documentation.
“Business Day” means Monday to Friday, except US federal public holidays.
“Business Hours” means 08.00 to 18.00 ET, each Business Day.
“Chaiz API” means the API (which is subject to the separate Chaiz API License) which the Customer wishes to utilize.
“Chaiz Site” means a website or similar sales portal owned and or operated by Chaiz.
“Commencement Date” means the commencement date identified in the Annex, if no date is specified then it is the date when Chaiz first detects Consumer traffic originating from the Customer .
“Consumer” means a member of the public who wishes to purchase a Vehicle Service Contract.
“Contract” means a Vehicle Service Contract purchased by a Contract Holder.
“Contract Holder” means the purchaser and holder of a Contract.
“Confidential Information” means information that is proprietary or confidential and is either clearly labeled as such or identified as confidential in section 6 of this Agreement.
“Customer” is the party identified in the Annex.
“Customer End Users” means the client of the Customer.
“Customer Site” means a website or similar portal used by Customer to promote and or sell its products and services.
“Documentation” means the documents made available by Chaiz from time to time when relevant to the Customer which sets out any instructions for the Services.
“Effective Date” means (unless otherwise specified in the Annex) the date when this Agreement has been executed by both Parties.
“Fees” means the amount specified in the Annex to be paid by Chaiz to the Customer.
“Initial Term” means the period specified as such in the Annex..
“Intellectual Property” means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Month” means a calendar month.
“Party” means Chaiz or Customer, and “Parties” means both of them.
“Provider” means a provider or administrator of Vehicle Service Contracts.
“Recurring Fees” means any Fees specified in the Commercial Order which recur.
“Vehicle Service Contract” is a plan or contract that covers the cost of repairs for mechanical breakdowns of vehicles normally after the manufacturer's warranty has expired.
In this Agreement the singular includes the plural and the masculine includes the feminine.
2.1 Chaiz will provide Customer a “URL link” or the Chaiz API (to consume, if by API or implement, if by “URL” link) to enable Customer to offer to its Consumers the ability to purchase through Chaiz Site Vehicle Service Contract(s).
2.2 If Customer wishes to use the Chaiz API, Chaiz will provide Customer with Documentation relevant to the Chaiz API. The Chaiz API is subject to the separate Chaiz API License, which Customer will be deemed to have agreed if it uses the Chaiz API. Customer shall, at its own cost and expense, provide all Internet connections, equipment, operating systems, software, and labor required to allow Customer to establish a working connection to the Chaiz API and Chaiz Site.
2.3 Customer is responsible for ensuring that configuration parameters are set correctly to retrieve the intended Vehicle Service Contracts from the Chaiz API or if used with any scripts provided by Chaiz. Chaiz cannot be held liable if configuration parameters are not given or set incorrectly.
3.1.1 Chaiz shall pay Customer the Fee specified in the Annex.
3.1.2 Chaiz will notify Customer five (5) Business Days after the end of the calendar month specifying the number of Activated Contracts entered into in the preceding month multiplied by the Fee.
3.1.3 Customer shall submit an invoice to Chaiz within 15 Business Days of its receipt of the Chaiz Report submitted pursuant to section 3.1.2 or 3.1.5. Chaiz shall pay Customer within thirty (30) days of the end of the month calendar in which the invoice was received.
3.1.4 Chaiz shall not be entitled to a refund of the Fee in whole or part for any Contracts cancelled by Contract Holder or Provider, regardless of the reason for cancellation.
3.1.5 Dispute. If Customer disputes any of the numbers in the Chaiz Report, it shall do so within five (5) Business Days of receiving the Chaiz Report and shall provide Chaiz with a further five (5) Business Days such evidence as it has or Chaiz reasonably requests to establish that the Chaiz Report is in error. If an error in the Chaiz Report is established to Chaiz’s reasonable satisfaction, then Chaiz will correct the Chaiz Report and resubmit it to the Customer.
3.2.1 Chaiz attributes on a first-touch basis with a standard thirty (30) day (calendar days) look-back period on conversion.
3.2.2 Reporting is provided on conversion via postback if Customer has provided Chaiz a postback URL or via standard reporting in a Chaiz reporting tool.
3.2.3 Customer is responsible for ensuring that attribution parameters are set correctly in the Chaiz API or for the Chaiz URL. Chaiz cannot be held liable if attribution parameters are not given or set or if the parameters are incorrect or if Customer or Customer End-User uses an ad-block or browser that strips attribution parameters, no matter if Customer consumed Vehicle Service Contract offers via the Chaiz API or not.
Customer may audit the books and accounts of Chaiz to verify the Fees PROVIDED that:
3.3.1 Chaiz is given fifteen (15) Business Days’ notice of Customer’s desire to audit;
3.3.2 No such audit takes place more than once in any calendar year;
3.3.3 Customer engages a suitably qualified independent auditor to carry out the audit, who shall, if requested by Chaiz enter into a confidentiality agreement with Chaiz; and
3.3.4 The auditor shall not be disruptive to the normal business activities of Chaiz and shall only be entitled to inspect the books and records of Chaiz in so far as they relate solely to the Contracts entered into by Customer End Users during the currency of this Agreement and for the period specified in the audit request.
3.4 If the audit reveals a shortfall, then Customer will share a copy of the audit report with Chaiz;
3.5 Chaiz may dispute the audit findings by notifying Customer within twenty (20) Business Days’ of Chaiz's receipt of the audit report;
3.6 Chaiz and Customer will meet to agree any disputed findings and if such findings cannot be resolved within a reasonable time the Parties will appoint a suitably qualified accountant independent of the auditor and the Parties to resolve any dispute. The costs of the independent auditor shall ‘follow the event’ or as decided by the independent auditor.
3.7 Any agreed shortfall revealed by the audit report (section 3.4) or determined by the independent auditor (section 3.6) shall be paid by Chaiz to the Customer within five (5) Business Days.
3.8 If the revealed shortfall exceeds 10% of the total amount under review, then Chaiz shall pay the auditor’s reasonable actual costs for carrying out the audit.
4.1 The Intellectual Property of each Party shall remain with that Party. The Parties shall acquire no rights in the Intellectual Property of the other save as explicitly described in this Agreement or any other agreement made between the Parties. Any feedback provided by Customer or Customer End- Users shall belong to Chaiz.
4.2 Customer shall not (without the prior written consent of Chaiz) , and shall not permit any person under Customer’s control to make derivative works of a Chaiz Site or Chaiz API; reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from Chaiz API or scripts provided by Chaiz; use or allow the use of a Chaiz Site in contravention of any applicable law; introduce into the Chaiz Site any virus or other code or routine intended to damage or disrupt a Chaiz Site; use a Chaiz Site by means of “framing”, “robots,” “bots,” “spiders,” “data-mining”, “scraping”, or any other similar automated method except as expressly permitted in the Annex; or otherwise act in a fraudulent, malicious, or negligent manner.
4.3 Use of Marks. Each Party grants a license to the other the right to use and display the other’s name and/or logo as may be reasonably necessary to use and or promote the Vehicle Service Contracts sold by Chaiz in marketing and promotional materials, subject the licensors standard trademark usage guidelines that may be expressly provided to the licensee. This license will terminate automatically upon termination of this agreement save that Chaiz may continue to use the name and/or logo of Customer to publicise that the Customer had been a Customer of Chaiz.
5.1 The Parties are responsible for implementing and maintaining appropriate security measures for their own operations in accordance with technological developments and evolving security needs. Appropriate security measures include, without limitation, preventing unauthorized access to its environment, installing firewalls, having appropriate administrative procedures to ensure that access is given to only Authorized Users and is promptly withdrawn from terminated employees or other persons who are no longer authorized, and adhering to current payment card industry security requirements.
5.2 Chaiz may suspend any link to the Chaiz Site or Chaiz API if Chaiz, in good faith, determines or believes: (a) that Customer or Customer End Users will or have materially breached the Chaiz Acceptable Use Policy; (b) there is an unusual and material spike or increase in traffic and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Chaiz or the Chaiz Site or Chaiz API; (c) that Chaiz becomes is prohibited by applicable law or regulation from offering Vehicle Service Contracts; (d) there is any use by Customer or Customer End Users that threatens the security, integrity, or availability of the Chaiz Site or Chaiz API ; or (e) that information in the Customer account is untrue, inaccurate, or incomplete. Subject to any such suspension this Agreement shall continue in full force and effect without prejudice to the right of either party to terminate in accordance with section 8.
6.1 Receiving Party agrees that all information disclosed by the other Party which is either marked as, or should otherwise reasonably have been understood to be confidential (“Confidential Information”) will be held in confidence, and will be used only for purposes of this agreement.
6.2 These obligations will not apply to information which (a) is generally known to the public at the time of disclosure or later becomes generally known through no fault of the receiving Party; (b) was known to the receiving Party prior to disclosure by the disclosing Party; (c) is disclosed to the receiving Party by a third party who did not obtain such information, directly or indirectly, from the disclosing Party subject to any confidentiality obligation; (d) is at any time independently developed by the receiving Party as proven by its contemporaneous written records.
6.3 Either Party may disclose Confidential Information to its parent and affiliates, provided that such parties agree to be bound by these obligations of confidentiality or is required by law, court order, governmental agency or law enforcement security initiatives to disclose such Confidential Information.
6.4 Either Party may disclose publicly that the Parties have entered into this aAgreement and that the other Party is a customer or vendor of the other Party but not disclose any other details concerning this Agreement without the prior written consent of the other Party.
6.5 The Parties’ confidentiality obligations under this Section will survive termination of this Agreement for a period of 3 years; provided, however, a Party’s trade secrets will remain confidential indefinitely.
The Customer will comply with all appropriate data protection rules applicable to this Agreement and the subject matter thereof. The Chaiz privacy policy can be found at https://www.chaiz.com/privacy-policy. Personal information will be processed and stored in accordance with the Federal and State laws and rules.
8.1 The Initial Term and Renewal Term is specified in the Annex.
8.2 Customer is entitled to terminate this Agreement with immediate effect if Chaiz fails to pay any amount due under this Agreement on the due date and remains in default for thirty (30) days after being notified in writing to make such payment.
8.3 Either Party is entitled to terminate this Agreement with immediate effect in the following situations: (i) at the end of the Initial Term or any Renewal Term (ii) the other Party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within twenty (20) Business Days after being notified to do so; (iii) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts, commences liquidation proceedings or some other action analogous with ceasing to trade.
8.3 Upon termination of this Agreement for any reason: (a) all licenses granted under this Agreement shall immediately terminate; (b) each Party shall return and make no further use of any, property, Documentation and other items (and any and all copies of them) belonging to the other Party; (c) Chaiz shall pay any outstanding fees due to Customer in accordance with this Agreement; (d) Chaiz may destroy or otherwise dispose of any of the Customer Confidential Information in its possession after no less than thirty (30) days from the effective date of the termination.
Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
8.4 Notwithstanding termination of this Agreement, Customer shall be entitled for a period of 30 days from termination to invoice and be paid Fees for Activated Contracts sold in accordance with the terms of this Agreement prior to the date of termination even if the Contract was entered into after termination.
9.1 The Customer shall defend, indemnify and hold harmless, Chaiz against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer End Users, Authorised Users, the Customer's provision of Personal Data, Customer Intellectual Property and/or use of the Services and/or Documentation, provided that: (a) the Customer is given prompt notice of any such claim; (b) Chaiz provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and (c) the Customer is given sole authority to defend or settle the claim.
9.2 Chaiz shall defend the Customer, its officers, directors and employees against any claim(s) that the Customer's use of Chaiz Intellectual Property in accordance with this Agreement infringes any patent, copyright, trademark, or right of confidentiality effective as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims. Provided that: (a) Chaiz is given prompt notice of any such claim; (b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Chaiz in the defense and settlement of such claim, at Chaiz's expense; and (c) Chaiz is given sole authority to defend or settle the claim.
9.3 The foregoing sections 9.1.and 9.2 state the Parties's entire obligations and liability to the other for the claims to which these sections might apply.
10.1 Except as expressly and specifically provided in this Agreement: (a) the Parties shall have no liability for any damage caused by errors or omissions in connection with any actions taken by a Party at the other's direction nor for the sale or offer for sale of Vehicle Service Contracts though the Chaiz Site or Chaiz API ; (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and (c) the Parties shall have no recourse for any claim arising from the subject matter of this Agreement unless such claim is based on an act of default of the other Party. Nothing in this Agreement excludes the liability for: (a) death or personal injury caused by Chaiz's negligence; or (b) for fraud or fraudulent misrepresentation. Subject to the foregoing Limitations of Liability: (a) neither Party nor their affiliates, officers, directors, employees, agents, suppliers or licensors SHALL BE LIABLE UNDER ANY CIRCUMSTANCES AND UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, DEPLETION OF GOODWILL, PUE ECONOMIC LOSS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES however arising under the Agreement; and (b) except with respect to a breach of (i) confidentiality, (ii) Intellectual Property, (iii) the indemnities or (iv) any Fee properly owing each Party's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to $1,000..
10.2 Some jurisdictions may not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE JURISDICTIONS, LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
This Agreement and any dispute or claim arising out of it or to its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware, USA. Each Party irrevocably agrees that the courts of the State of Delaware shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
12.1 Survival. Any termination of this Agreement will not affect any liabilities or rights accruing prior to the effective date of such termination, or that are of a continuing nature. Any terms and conditions that by their nature or their explicit wording should survive a cancellation or termination of this Agreement shall also be deemed to survive.
12.2 Search Engine Bidding. During the Term and for three (3) calendar months thereafter the Customer will not engage in search engine bidding or keyword bidding for the keyword “Chaiz” or any similar word or name nor procure or condone any such activity.
12.3 Notices. All notices may be delivered in writing (a) by nationally recognized overnight delivery service to the contact mailing address provided in the Annex; or (b) electronic mail to the address provided in the Annex.
12.4 Assignment. Neither Party may, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or rights under it or delegate performance of its duties without the other Party’s prior consent.
12.5 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any and all prior agreements between Customer and Chaiz with regard to Customer’ to the subject matter of this Agreement. This Agreement shall apply in lieu of the terms or conditions in any documentation provided by Customer (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to this Agreement.
12.6 Amendment. No amendment of this Agreement shall be binding unless signed by both Customer and Chaiz.
12.7 Waiver. A failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Agreement.
12.8 Legal Requirements. If any provision in the Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. If any part of this Agreement or its subject matter would directly or indirectly contravene any law, act or order of a government, regulatory, or supervisory body applicable to, Customer, including but not limited to any applicable trade sanctions, Chaiz or Customer may suspend this Agreement immediately. Any such suspension shall not exclude any right Chaiz may have to terminate the agreement.
12.9 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
