Terms of Service (RTI Master Subscription Agreement Annex B)

This Annex outlines the pertinent information on the use of RUSH's services, including the responsibilities of RUSH (RTI) and the merchants.

RUSH TECHNOLOGIES INC. (RTI) reserves the right at any time, and from time to time, to modify the Terms of Service as the RUSH Software may reasonably require according to RTI's sole discretion with or without notice (unless otherwise required by applicable law). Said revisions or modifications shall be posted on the RUSH website: www.help.rush.ph and, once published therein, shall become binding on Merchant. It shall be the Merchant’s obligation to be informed thereof by accessing, from time to time, such website where the latest version of this Terms of Service may be found. Merchant’s continued use of the Service shall be deemed an acceptance of any revision or modification of this Terms of Service.

1. Definitions

 

2. Use of the Services

2.1 Subscription. The right to access and/or use the Service will be granted through a valid and active Subscription Package for a corresponding Fee specified in this Terms of Service. Merchant agrees that the availment of a Subscription Package is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comment made by RTI regarding future roadmap.

2.2 Terms of Use. End-Users of the Service will be governed by the corresponding Terms of Service which they need to agree to, in order to use the Service.

3 Responsibilities of RTI

3.1 Provision of Service. RTI will (a) make the Service available to Merchant pursuant to this Terms of Service, (b) provide applicable maintenance and support for the Service to Merchant, and (c) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which RTI shall give advanced notice via RTI’s official communication channels), and (ii) any unavailability caused by circumstances beyond RTI’s reasonable control, including, for example, an act of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strike, or other labor problem, internet service provider failure or delay, or denial of service attack.

3.2 Protection of Merchant’s Data. Subject to provisions stated in Annex B hereof, RTI will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Merchant’s Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Merchant’s Data by RTI personnel except (a) to provide the Services and prevent or address service or technical problems, and (b) when compelled by law.

3.3 Data Retention. Refer to Annex B.

4. Responsibilities of Merchant

4.1 Management of the Service. Merchant shall be responsible for setting up, managing, and modifying the Service based on Merchant’s Subscription Package, which includes but is not limited to configuring the mechanics, uploading mobile application and End-user interface design assets, and using the functions and tools available in the CMS.

Merchant shall be responsible for providing access to the Service to Merchant’s Employees via the CMS.

Merchant warrants that any user who makes any transaction or modification to any of Merchant’s Components is authorized to do so.

Merchant shall be solely responsible for any and all necessary government or legal permits required to offer Merchant’s Products and/or Promotions to Merchant’s Customers, except as otherwise agreed to by the parties. Merchant shall hold free, harmless, and indemnify RTI, and its stockholders, officers, directors, employees, authorized representatives, affiliates, subsidiaries, from any and all liability and losses resulting from any claims from third parties due to the said lack of government or legal permits.

4.2 Branding and Marketing. Merchant grants RTI permission to use Merchant’s trademarks, logos, service marks, or other designations for the design and branding of the Service for the Term of the Subscription Package and sending of communication to Merchant’s End-Users regarding technical concerns involving the Service.

Merchant undertakes and warrants that Merchant shall provide and grant access to non-infringing branding materials and/or content to RTI for the Service’s branding and/or aesthetic purposes. In the event of a claim that any content submitted infringes any intellectual property, Merchant undertakes and warrants that Merchant shall hold RTI free, harmless, and indemnified against any and all liability arising from, in relation to, or in connection with such claim.

Merchant is responsible for the content and transmission of their messages to End-Users via the Content Management System (CMS), which includes but is not limited to SMS and App Notifications. Merchant agrees to abide by the applicable laws, rules, regulations, guidelines, and policies of the government including, but not limited to, the National Telecommunications Commission (NTC) relating to broadcast messaging services or SMS to End-Users for advisory, advertising, and promotional uses. Accordingly, Merchant hereby undertakes to hold RTI free, harmless, and indemnified against any and all liabilities, of whatever nature, arising from, in relation to, or in connection with Merchant’s violation of or failure to comply with applicable laws, rules, regulations, guidelines and policies of the government.

a. Merchant can send promotional messages via the CMS Tool only to End-Users within the Customer Database of the Service.

b. App Notifications.

i) Merchant agrees not to publish content containing or depicting any of the following:

(1) Adult Content - any advertisement containing, depicting, or promoting nudity/ profanity/ violence;
(2) Alcohol - any advertisement promoting the use of alcohol;
(3) Drugs - any advertisement depicting or promoting the use of drugs and other illegal substances;
(4) Gambling - any advertisement promoting gambling; and
(5) Tobacco - any advertisement promoting the use of tobacco.

ii) Merchant agrees to limit Mobile App Notifications to two (2) per day per Customer.

c. SMS Blast/Messaging.

i) Merchant will be charged a corresponding amount for every 140-character SMS sent.

ii) Merchant is responsible for inputting Sender Identification that will be used as Merchant’s identifier when sending SMS notifications to Merchant’s Customers.

iii) Merchant agrees not to publish content containing any of the following:
(1) Adult Content - any advertisement containing, depicting, or promoting nudity/profanity/ violence;
(2) Alcohol - any advertisement promoting the use of alcohol;
(3) Drugs - any advertisement depicting or promoting the use of drugs and other illegal substances;
(4) Gambling - any advertisement promoting gambling; and
(5) Tobacco - any advertisement promoting the use of tobacco.

iv) Merchant agrees to send Merchant’s Customers SMSs from 7AM - 7PM only.

v) Merchant agrees to be limited to two (2) SMS per week per Customer.

vi) Merchant agrees that the maximum character count per SMS is 420 characters.

Merchant will neither use nor allow or cause the Service to be used to post, transmit, distribute, link to, or solicit content that creates a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message. Merchant shall hold free, harmless, and indemnify RTI, and its stockholders, officers, directors, employees, authorized representatives, affiliates, subsidiaries, from any and all liability and losses directly and indirectly caused by Merchant’s violation of this provision.

4.3 Content, Data, and Security. Merchant agrees and warrants that Merchant shall not upload, post, email or otherwise transmit any content that:

a. Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, indecent, offensive, vulgar, obscene, libelous, invasive of another’s privacy, hateful, defamatory or racially, ethnically objectionable; and

b. Infringes any copyrights patent, trademark, trade secret, copyright or any other intellectual property, personal rights of any person, or violates any obligation of confidence or any other proprietary right of any party; violates any regulatory requirement or codes applicable under Philippine Laws, or other material protected by intellectual property laws, rights of privacy or publicity or any other applicable law.

Subject to RTI compliance with existing data privacy laws, and the provisions in Annex B hereof, and throughout the duration of the Subscription Agreement, Merchant consent that RTI may use End-User data solely for purposes of planning, research, design, and marketing of the RUSH Software or any future software of RTI and its subsidiaries and affiliates. Merchant acknowledges that upon access to the Service, RTI may collect and process the following information:

a. Anonymous web and mobile application statistics collected as End-Users browse and use the Service/s
b. Personal Information that the Merchant and its End-Users and Customers knowingly provide via the Service.

Username and password.

a. After sign-up, Merchant will be issued a temporary password via the email address of Merchant’s Authorized Company Representative to access Merchant’s account. Once Merchant have accessed Merchant’s account, Merchant will be prompted to change the password to one that Merchant prefers.

b. Merchant understands that while the Service has various internal security measures designed to protect its users, Merchant hereby assumes sole responsibility for the security of Merchant Account, as well as the confidentiality of any email address, Username and/or Password associated with such email and/or Merchant Account. All access to the Service and any Service availed using such email address, Username and/or Password shall be presumed made or authorized by Merchant. Accordingly, Merchant shall ensure that access to the Service shall only be limited to the designated individuals whose credentials are enrolled to minimize the probability of hacking and/or fraudulent or unauthorized transactions.

c. Merchant and Merchant’s Employees shall not disclose to any person the password to login and shall not permit or authorize any other person to use the login credentials and password (access security) for any purpose whatsoever. Merchant shall hold RTI free, harmless and indemnified against any and all damage, claim, or liability arising from the failure to enforce such access security policy by institutionalizing login and password security policy. RTI shall not be liable for security breaches for Merchant’s failure to implement the same.

d. Merchant shall adopt a policy, whereby Merchant’s Employees upon learning that any other person has acquired knowledge of the password to login or has used the password provided to access or use the Service or effect any transaction (whether with or without prior knowledge and consent), Merchant or Merchant’s Employee shall:

i) Immediately notify RTI thereof (within 2 hours from suspicion);
ii) Provide RTI any other information relating thereto as RTI may require so it may suspend log-in credentials and supply temporary credentials; and
iii) Change the temporary password as desired.

e. Merchant shall be bound by any transaction effected by any person using the password prior to RTI’s receipt of notice thereof under Section 4.a. above or prior to Merchant changing the password as required under Section 4.c. above, whichever comes first.

f. Merchant agrees to use the Service in a manner consistent with all applicable laws and regulations and are solely responsible for all acts or omissions that occur under Merchant’s or Merchant employees’ respective account or password.

g. Merchant and its Employees will exercise the highest degree of effort to keep usernames and password private and exclusive for use on a one-is-to-one basis.

Parties shall adhere to and abide by applicable data privacy and data protection laws, rules, and regulations, and RTI’s data privacy policies as stated in Annex B.

Parties shall obtain all required consents under the applicable privacy and data protection law before providing Personal Information. This includes the obligation to obtain the End User’s acceptance of the Service. Parties shall exercise strict confidentiality and employ reasonable measures to ensure to hold such customer data information with strictest confidence in accordance with this Terms of Service.

Merchant acknowledges that RTI may use Merchant’s and its Customers’ Personal Information to the extent necessary to comply with the requirements of the law and legal processes.

Merchant allows RTI to access and disclose data from, about or related to Merchant, pursuant to any order of any court or tribunal, to any law enforcement or other government authority, court or tribunal, subject to RTI giving prior notice to Merchant of such order by any court, tribunal or government authority.

4.4 Software Upgrades. Merchant agrees and understand that RTI may update/change the RUSH Software version from time to time as part of RUSH Software upgrades.

4.5 Subject to the Terms of Service, Merchant accepts/consents that some portions of the Service may require that Personal Information be provided by End-Users. Such Personal Information refers to any and all information relating to the End Users (including, but not limited to the name, contact number, email address, mailing address, and transaction information) obtained via access to or use of the Services.

4.6 Merchant shall allow RTI to gain access to data tied to Merchant’s account as required for operations.

4.7 Merchant shall be committed to help RTI maintain an environment free from personal harassment for all the employees and staff of RTI. To this end, the Merchant agrees to treat all persons under this Agreement with respect and dignity and not be subjected to humiliation or intimidation. Any inappropriate behavior by the Merchant shall be dealt with under the applicable laws and may be grounds for termination of this Agreement without prejudice to RTI.

5. Proprietary Rights and Licenses

5.1 “Intellectual Property (IP)” shall mean any present or future development work, copyright, patent, trademark, trade name, service mark, design, program, procedure and method of computation, trade secret, data model, invention, drawing, plan, specification, process or similar property. Without limiting the generality of the foregoing, this may include patents, trademarks, service marks, design right (whether registerable or otherwise), domain names, applications for any of the foregoing, trade secrets, copyright, know-how, trade or business names and other similar rights or obligations whether registrable or not in any country; any and all technical or commercial information, including, but not limited to the following: software (object and source code), manufacturing techniques and designs; specifications and formulae; know-how, data, systems and processes; production methods; trade secrets; undisclosed inventions; financial and marketing information; as well as registered or unregistered intellectual property in the form of patents, trademarks, designs, and copyright in any works, including Applications, Software, hardware, and other Intellectual Property for which RTI or its Third Party vendors has rights and interests to.

5.2 All Intellectual Property and IP rights created prior to the commencement of the Master Subscription Agreement shall be and remain the property and right of the Party which created the same or for which it has license to or right thereto and shall be referred to as “Intellectual Property” (IP).

5.3 The Merchant agrees and acknowledges that it shall not acquire any right, title or interest in any copyright or other proprietary rights in the design of the Service/s including modification, agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Service/s or which is visible during its operation.

5.4 Except as permitted by this Terms of Service, the Merchant and its End-Users shall not:
a. Attempt to decompile, disassemble, modify the source code of, or reverse engineer the IP;
b. Use, reproduce, transmit, modify, adapt or translate the IP;
c. Rent, lease, license, transfer, assign, sell or otherwise provide access to the IP on a temporary or permanent basis;
d. Use or cause or allow a Third Party to use the Service and Services in any way to develop competing Service or services;
e. Use any Third-Party Intellectual Property or components on a standalone basis unless such standalone use is authorized expressly by RTI or RTI’s Third Party Vendors; nor alter, remove or cover proprietary notices in or on the IP.

 

6. Confidentiality

6.1 All communications or data, in any form, whether tangible or intangible, which are disclosed or furnished by any director, officer, employee, agent, or consultant of any department or business area of any party hereto, including their affiliates and subsidiaries, (hereinafter “Disclosing Party”) to the other party, including their affiliates and subsidiaries, (hereinafter “Receiving Party”) and which are to be protected hereunder against unrestricted disclosure or competitive use by the receiving party shall be deemed to be “Confidential Information”. The Receiving Party shall not disclose, reproduce, or disseminate such confidential information to anyone, except to those employees and consultants (including employees and consultants of its parent, subsidiaries and affiliates) who have a need to know such Confidential Information for the purpose for which it is disclosed.

6.2 As used herein, the term "Confidential Information" shall mean all non-public, confidential or proprietary information disclosed hereunder, in any tangible or intangible form, such as but not limited to written, oral, visual, audio, those produced by electronic media, or through any other means, that is designated as confidential or that by its nature or circumstances surrounding its disclosure, should be reasonably considered as confidential.

6.3 Confidential Information shall include, but not be limited to, products or planned products, processes and/or procedures, technological achievements and interests, customers and potential customers, business prospects, financial statements and information, financial situation and corporate plans, internal activities, future plans of both parties, and other information deemed proprietary or confidential by the Disclosing Party or any other matter in which the Disclosing Party may have any interest whatsoever.

6.4 Each Disclosing Party hereby represents and warrants to the Receiving Party that it has lawful rights to provide the confidential information.

7. Representations, Warranties, Exclusive Remedies, and Disclaimers

7.1 RTI makes no warranty of merchantability, fitness for a particular purpose (including Merchant’s compliance with its statutory or regulatory obligations), or arising from a course of performance, dealing or usage of trade.

7.2 RTI does not warrant that the Service is error-free. RTI will use reasonable commercial efforts to effect the rectification.

7.3 There is no such thing as perfect security, and RTI cannot guarantee or warrant the security of any Data (including Confidential Information or Personal Information) that RTI receives and stores on the RTI network systems. However, in the event of breach, RTI assures technical security measures are in place. Please refer to Annex C (2) for the Business Continuity Framework.

7.4 The Merchant will remain duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority, including all licenses, permits, and registrations required under law and/or local ordinances, to conduct its business, own its properties, and execute, deliver and perform its duties, obligations, undertakings, warranties and covenants under this Terms of Service.

7.5 The execution, delivery, and performance by the Merchant of this Terms of Service have been duly authorized by all necessary corporate action, and do not and will not contravene any provision of the Merchant's constitutional documents or any indenture, contract or agreement to which the Merchant is a party or by which it or its properties may be bound, or any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect applicable to the Merchant.

7.6 All actions, conditions and things required by any applicable law or regulation to be taken, fulfilled and done, including the obtaining of any necessary authorizations, approvals, permits, licenses and consents, in order to enable the Merchant lawfully to enter into, exercise its rights and perform and comply with its obligations under this Terms of Service, to ensure that those obligations are valid, legally binding and enforceable and to make this Terms of Service admissible in evidence in any court of competent jurisdiction have been taken, fulfilled and done in all material respects.

7.7 In entering into the Master Subscription Agreement, the Merchant has relied on its own judgment and has not relied upon any representations, warranties or statements made or purported to be made by RUSH TECHNOLOGIES Inc. (RTI). and/or its subsidiaries and/or Affiliates (other than others expressly set out in this Terms of Service).

7.8 So far as the Merchant is aware, no litigation, arbitration or administrative proceeding is current, pending or threatened to restrain the entry into, exercise of any of its rights under and/or performance or enforcement of or compliance with any of its obligations under this Terms of Service, and the Merchant is not subject to any outstanding judgment, rule, order, statement of claim, injunction or decree of any court, governmental or regulatory authority or body acting in an arbitral or adjudicative capacity, that may affect its ability to perform its obligations under this Terms of Service. Should the Merchant obtained knowledge of any pending litigation, arbitration, or administrative proceeding under its name, Merchant undertakes to report this with RTI within five (5) days of knowledge thereof.

7.9 Any and all documents, certificates, statements, accounts, and other information provided to RUSH TECHNOLOGIES Inc. (RTI). by or on behalf of the Merchant in connection with the Merchant’s affairs and business, any services and/or this Terms of Service are true, accurate and complete in all respects (and the Merchant acknowledges that RUSH TECHNOLOGIES Inc. (RTI). had relied on such information in deciding to enter into the Master Subscription Agreement with the Merchant).

8 Indemnification and Liability

8.1 Merchant agrees to indemnify, defend and hold harmless RTI, its parent companies, business partners, stockholders, directors, officers, employees, agents, and any third-party vendors from and against any and all claims, losses, expenses, damages and costs, expenses demands (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of Merchant’s negligent or improper use of the Service, misuse, improper use of data or content, unlawful exposure of data or inability to use the Service due to causes attributable to the Merchant, or unlawful use of content, or any breach by the Merchant of this Terms of Service or Merchant’s act, omission, fault, negligence, gross negligence, willful misconduct or for violation of any rights of another. These obligations will survive any termination of Merchant relationship with RTI or Merchant use of the Service.

8.2 RTI’s possible liability is strictly limited to the extent of this Terms of Service. RTI shall not be subjected to any form of liability arising out of or in connection with the ordinary course of business of the Merchant.

8.3 Notwithstanding any other provision of this Terms of Service, the maximum aggregate liability of RTI to the Merchant arising out of or in connection with this Terms of Service, whether based on breach of contract, statutory warranty or otherwise, shall be strictly limited to an amount equal to the Service Fees actually received by RTI under this Terms of Service for the year immediately preceding the event which gave rise to such liability.

8.4 In no event will RTI be liable for any damages whatsoever, including, but not limited to any indirect, incidental, consequential, special, exemplary or other indirect damages arising out of

(i) the negligent or improper use of or inability to use of the Service, or the content due to causes attributable to the Merchant,
(ii) any transaction conducted through or facilitated by the Service without any form of involvement or participation by RTI;
(iii) any claim attributable to errors, omissions, or other inaccuracies in the Service and/or the content, wherein such errors, omissions, or other inaccuracies in the Service and/or the content are attributable to the Merchant,
(iv) unauthorized access to or alteration of Customer transmissions or data not attributable to RTI, or
(v) any other matter relating to the Service, or the content without any form of involvement or participation by RTI, even if advised of the possibility of such damages.

8.5 RTI reserves the right to refuse liability outside of jurisdictions in which it cannot be held accountable.

9 Notices, Governing Law, and Jurisdiction

9.1 Merchant is contracting with RUSH TECHNOLOGIES Inc. (RTI). with office address at 2F Globe Telecom Plaza Tower 1, Pioneer corner Madison Streets, Barangka Ilaya, Mandaluyong City, Philippines 1552.

9.2 All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and may be delivered personally or sent via electronic means such as email to accounts@rush.ph.

9.3 Philippine Law governs the interpretation of this Agreement and applies to claims for breach of it. All other claims, including claims regarding breach of contract, breach of warranty, consumer protection laws, will be subject to Philippine laws.

9.4 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, will be referred to by exhausting good faith negotiations. Should the dispute cannot be resolved through the said negotiations, it will be referred to arbitration, specifically to the Philippine Dispute Resolution Center, Inc. (PDRCI) whereby both parties shall abide by the latter’s rules and regulations regarding the conduct of arbitration.

10 Miscellaneous Provisions

10.1 Transfer of Entity. RTI at its sole and absolute discretion may transfer, assign, or novate the rights, obligations, and benefits emanating from this Agreement without Merchant’s written consent and merchant shall take all steps necessary to enable RTI to complete such assignment, transfer, or novation.

Merchant shall not assign the Master Subscription Agreement without the prior written consent of RTI.

10.2 No failure by either to exercise, and no delay on its part in exercising, any right or remedy under this Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Terms of Service are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).

10.3 Each Party shall bear its own respective costs incurred by it in connection with the preparation, negotiation and entry into the Master Subscription Agreement.