TERMS AND CONDITIONS FOR THE SUPPLY OF QRbuzz® BY Mumara [a subsidiary of Hostings House Solutions, LLC].
WHEREAS, MUMARA® is a company in the business of email marketing solutions, digital consumer benefits, including fundraising tools, and rewards programs, and “white label” mobile application services for not-for-profit and for-profit organizations and public entities, and further provides marketing services to merchants in the offering of merchants’ discount offers and promotions via online offers, print offers, and mobile applications that promote the merchant’s business brand; and
WHEREAS, Merchant desires to participate in, and provide a discount and other customer offers and benefits for offering and/or use on and/or in connection with, MUMARA®’s QRbuzz® Community Marketing Mobile Application (the “QRbuzz® App”) and MUMARA®’s “white label” mobile application products (the “White Label Apps”), via online offers, and printed distribution offers on the terms and subject to the conditions set forth in this Agreement, so that Merchant may market to existing and potential customers and build a customer or brand loyalty; and
WHEREAS, MUMARA® desires to enter into an agreement with Merchant to provide Merchant with the benefit of MUMARA®’s mobile applications, via online offers, print offers, and provide other related services for and to Merchant.
- DEFINITIONS AND INTERPRETATION
1.1. In these terms and conditions the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday, or public holiday) when banks are open for business.
‘Contract’ means the contract between the Company and the Merchant for the supply of Services governed by these Terms and the Order.
‘Merchant’ or ‘Merchant’ means the individual or business entity who avails Services from the Company and whose details are set out in the Order.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
‘Group Company’ means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006. ‘Company’ means Hostings House Solutions, LLC, a company incorporated in New York, USA under company number 4820638 whose registered office is at 33 W Hawthorne Ave, Valley Stream, trading as Mumara.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Merchant’ means ‘Merchant’. See the definition of ‘Merchant’.
‘Offer’ means any additional product/service or any discount given for the purpose of promotion by the Merchant within the scope and definition of the registered business.
‘Order’ means the order placed by the Merchant through counter-signing the Company’s Quotation form. ‘Order Form’ means a Quotation form countersigned by the Merchant which together with these terms and conditions shall form a binding contract.
‘Quotation’ means the written quotation prepared by the Company which contains its proposals for providing Services to the Merchants.
‘Services’ means the services the Company will provide to the Merchant as specified in the Order.
‘Specification’ means the description or specification of the Services in the Order.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
‘White Label Work’ means Services provided by the Company to a Merchant who rebrands these services as their own for the benefit of their Merchant.
1.2. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words that denote a particular gender, they shall be also read to include all genders and vice versa.
1.3. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.4. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- TERMS AND CONDITIONS
2.1. These Terms shall apply to all agreements concluded between the Company and the Merchant to the exclusion of any other terms that the Merchant seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.2. These Terms and the Order may only be varied by express written agreement between the Company and the Merchant.
- THE BUSINESS
3.1 The Merchant must provide a Business Name to the Company which verifies with an existing and running business in accordance with Companies Act 2017 in Pakistan and similar for other countries.
3.2 The Merchant must provide a physical address for their Business.
3.3 The nature of the business must be retail or a type of retail business.
3.4 The Merchant must provide only relevant content (including display pictures, text for offers, and similar items) to the Merchant’s Business.
3.5 The Merchant must only post images and content to which the Merchant has copyrights and does not violate the copyright of any other entity.
4.1 A Merchant’s Business Branch must have one (1) running offer at any given point in time to be considered operational.
4.2 A Merchant may post as many offers simultaneously as they desire. There is no upper limit.
4.3 Any Offer made on QRbuzz® must remain exclusive and must not match existing offers by the Merchant on any other platform.
4.4 Any offer that is not on the QRbuzz® platform must not be equal to or better than offers on QRbuzz®.
5.1 Any and all content that violates the Prevention of Electronic Crimes Act, 2016 through the QRbuzz® Platform is strictly prohibited. The content will be blocked and the Violating party will face legal action.
5.2 A Merchant must not send emails containing content of another Merchant or advertise any business other than their own.
5.3 Any and all anti-religious or discriminatory content through emails on the QRbuzz® platform is not allowed and will be blocked.
5.4 Any and all political content through emails on the QRbuzz® platform is not allowed and will be blocked.
5.5 Any and all Anti-State content or criticism of the Governing bodies and institutions is not allowed and will be blocked.
5.6 Sharing of any Personal Information or attempt of defamation
6.1 Any Merchant’s service for QRbuzz® may be terminated by the Company for a valid reason without providing prior notice.
6.2 In the case of no Offer being scanned for a period of 3 months by any QRbuzz® User, the Merchant’s service for QRbuzz® will be terminated.
6.3 If the Offer is not completed or is denied by the Merchant, then the branch will be terminated.
- Can be avoided through a prior notice (such as offer stacking case).
- The Company will not be liable in the event that the Merchant does not complete or denies an offer to the customer. The liability resulting from this breach of contract will extend only to the Merchant.
- The Company has the right to take legal action against the Merchant in case of breach of contract.
- DELAYS AND COMPLAINTS
7.1 In the event that the Merchant proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Merchant shall be entitled to cancel the Order in accordance with clause 13.2 a), provided that the breach is material.
7.2 Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Merchant became or should have become aware of the matter. If the Merchant fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours the Merchant shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
7.3 The Merchant hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Merchant acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Merchant for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Merchant and the Merchant must satisfy itself whether or not such warranties (where given) are acceptable for the Merchant’s business purposes or risk management policies.
7.4 The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
7.5 The Merchant’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Merchant’s final remedy is limited to cancellation of the Contract and the Company’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 8 below.
8.1 Except as expressly stated in this Clause 9, the Company shall have no liability to the Merchant for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Merchant by any third party.
8.2 Without prejudice to the generality of Clause 9.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Merchant whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
- Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;
- Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
- Loss of data; and
- Fraudulent clicks on any of the Merchant’s accounts managed by the Company.
8.3 To the extent such liability is not excluded by sub-clauses 8.1, 8.2 and clause 9 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
- OTHER LIMITATIONS OF LIABILITY
9.1 The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. the Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Merchant. Any work connected with remedial efforts as described above shall be charged to the Merchant separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
9.2 The Company shall not be liable for any changes made without notice by the Merchant or a third party employed by the Merchant to domain names, websites, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Merchant in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
9.3 The Company shall use all reasonable endeavours to deliver Services
relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of search engines.
9.4 The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
9.5 The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
9.6 If the Merchant does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Merchant relating to the Services.
- INTELLECTUAL PROPERTY RIGHTS
10.1 It is the responsibility of the Merchant to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Merchant hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
10.2 The Merchant shall be responsible for ensuring that the contents of Materials which the Merchant has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. the Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Order.
10.3 The Merchant shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Merchant has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
10.4 The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
10.5 Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Merchant agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
10.6 The Intellectual Property Rights as mentioned in Clause 11.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Merchant without a separate, express written agreement.
10.7 If the Company makes software, scripts, ASP services etc. available to the Merchant as part of the execution of an Order, the Merchant shall only acquire a nonexclusive personal non transferable license to use such material until the Services under this agreement cease.
10.8 The Merchant hereby irrevocably licenses the Company to use and display the Merchant’s name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Merchant of the Company and for 18 months after the Contract terminates. The Merchant agrees to send the Company it’s most recent logo or figure as and when it is amended from time to time.
- CONFIDENTIALITY AND PERSONAL DATA
11.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
11.2 During the term of the Contract and for a period ending 5 years from the date of its conclusion, the Company shall take the same care as the Company uses with it own confidential information, to avoid, without the Merchant’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Merchant’s business or operational information which the Merchant has designated as confidential.
11.3 The obligation in Clause 12.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by theCompany, or which the Company is required to disclose by law.
11.4 During the term of the Contract and for a period ending 5 years from termination thereof, the Merchant will not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non Merchant materials provided by the Company concerning the method or approach the Company uses in providing the Services.
11.5 Each party agrees to comply with its respective obligations under the Data Protection Act 1998.
11.6 The Merchant shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Merchant has contributed being in contravention of the Data Protection Act 1998 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
- FORCE MAJEURE
12.1 Neither party shall be held liable for a Force Majeure Event.
12.2 If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
12.3 Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
13.1 The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Merchant and the Company shall not be liable to the Merchant or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
13.2 The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Merchant.
13.3 During the term of the Contract and for a period of 12 months thereafter, the Merchant agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
13.4 The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
13.5 If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
13.6 Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorized officers.
13.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.8 All notices must be in writing to Mumara, 33 W, Hawthorne Ave Valley Stream, 11580 NY, USA, or such address as is advised by the Company.
- ENTIRE AGREEMENT
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitute the entire agreement between the Company and the Merchant relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
- LAW AND JURISDICTION
15.1 The Company and the Merchant shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
15.2 The Contract shall be governed by and construed in accordance with cyber law and the parties hereby agree to submit to the non-exclusive jurisdiction of the cyber courts.