PLEASE READ THIS UNIVERSAL TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between Performatica and you, and is made effective as of the date of your use of this website ("Site") or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”). Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control. The terms “we”, “us” or “our” shall refer to Performatica. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
2. MODIFICATION OF AGREEMENT, SITE OR SERVICES
Performatica may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, Performatica may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account (“Account”) information current. Performatica assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, Performatica may terminate Your use of Services for any violation or breach of any of the terms of this Agreement by You. PERFORMATICA RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.
3. ELIGIBILITY; AUTHORITY
This Site and the Services are available only to individuals or entities (“Users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the Indian Republic or other applicable jurisdiction.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "User" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Performatica finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Performatica shall not be liable for any loss or damage resulting from Performatica’s reliance on any instruction, notice, document, or communication reasonably believed by Performatica to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document, or communication, Performatica reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
4. YOUR ACCOUNT
You represent and warrant to Performatica that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If Performatica has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Performatica reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. Performatica will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss Performatica or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
5. GENERAL RULES OF CONDUCT
You acknowledge and agree that:
Your use of this Site and the Services, including any content you submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations.
You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
You will not use this Site or the Services in a manner (as determined by Performatica in its sole and absolute discretion) that:
Is illegal, or promotes or encourages illegal activity;
Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
Infringes on the intellectual property rights of another User or any other person or entity;
Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
Interferes with the operation of this Site or the Services found at this Site;
Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Performatica or Performatica’s Services.
You will not perform any false, abusive or fraudulent activity. You will not perform any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
You will not copy or distribute in any medium any part of this Site or the Services , except where expressly authorized by Performatica.
You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
You will not access Performatica Content (as defined below) or User Content through any technology or means other than through this Site itself, or as Performatica may designate.
You agree to back-up all of your User Content so that you can access and use it when needed. Performatica does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
You will not re-sell or provide the Services for a commercial purpose, including any of Performatica's related technologies, without Performatica's express prior written consent.
You will not circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any Performatica Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the Performatica Content or the User Content therein.
You will not host, display, upload, modify, publish, transmit, store, update or share any information that violates Rule 3(1)(b) of the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 (the “Code”). In case of non-compliance with the Code, or Performatica's rules and regulations, privacy policies, and user agreements for access or usage of any computer resource, as that term is used in the Code, Performatica has the right to terminate the access or usage rights of the computer resource immediately or remove non-compliant information or both, as the case may be.
You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
You are aware that Performatica may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Performatica asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which Performatica is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from or on behalf of Performatica that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from Performatica. Similarly, by providing your mobile number, you consent to receive marketing text messages from or on behalf of Performatica that may be sent by an automatic telephone dialing system. You understand that providing consent is not a condition of purchasing any good or service from Performatica. Message and data rates may apply. Without limiting any of the rights set forth elsewhere in this Agreement, Performatica expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any Performatica policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by Performatica in its sole and absolute discretion).
If your purchase or account activity shows signs of fraud, abuse or suspicious activity, Performatica may cancel any service associated with your name, email address or account and close any associated Performatica accounts. If Performatica, in it's sole discretion, determines that any conducted activity is fraudulent, Performatica reserves the right to take any necessary legal action and you may be liable for monetary losses to Performatica including litigation costs and damages. To contest cancellation of Services or freezing or closure of an account, please contact Performatica Care.
6. PROTECTION OF YOUR DATA
Performatica offers certain hosted Services available to you that may involve the processing of personal data about you, your customers and/or web users(“Your Data”) in the course of your use of these Services (“Covered Services”). Your Data, for the purpose of this Section, excludes any User Content. Performatica’s Controller to Processor Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Covered Services, is meant to provide you contractual assurance that we have robust mechanisms to ensure the processing of Your Data, including transfers of Your Data from the European Economic Area to a third country, meets with compliance under applicable data privacy laws.
For the purposes of the Controller to Processor DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), you (and your applicable affiliates) are considered the Data Controller/Data Exporter, and your acceptance of the Terms of Service governing Covered Services at the time of purchase of any Covered Services will also be treated as your acknowledgement and acceptance of the Controller to Processor DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If you wish to print, sign and return a physical copy of the Controller to Processor DPA, please send an email request to us.
7. USER CONTENT
Some of the features of this Site or the Services, including those Services that are hosted with Performatica, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). All content submitted through your Account is considered User Content. By posting or publishing User Content to this Site or to or via the Services, you represent and warrant to Performatica that (i) you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
User Submissions. You acknowledge and agree that your User Submissions are entirely voluntary, do not establish a confidential relationship or obligate Performatica to treat your User Submissions as confidential or secret, that Performatica has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions, and that Performatica may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
Performatica shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions posted to this Site, and shall be entitled to the unrestricted use and dissemination of any User Submissions posted to this Site for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
User Content Other Than User Submissions. By posting or publishing User Content to this Site or through the Services, you authorize Performatica to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site and this Agreement. You hereby grant Performatica a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site, the Services and Performatica's (and Performatica’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your User Content (with the exception of User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that Performatica may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted. The above licenses granted by you in your User Content are perpetual and irrevocable. Notwithstanding anything to the contrary contained herein, Performatica shall not use any User Content that has been designated “private” or “password protected” by you for the purpose of promoting this Site or Performatica’s (or Performatica’s affiliates’) business(es). If you have a website or other content hosted by Performatica, you shall retain all of your ownership or licensed rights in User Content.
8. AVAILABILITY OF WEBSITE/SERVICES
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a 24x7 a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
9.NO SPAM; LIQUIDATED DAMAGES
No Spam. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation. We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications.
10. TRADEMARK AND/OR COPYRIGHT CLAIMS
Performatica supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright, please write to us.
11. LINKS TO THIRD-PARTY WEBSITES
This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by Performatica. Performatica assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, Performatica does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, you expressly release Performatica from any and all liability arising from your use of any third-party website. Accordingly, Performatica encourages you to be aware when you leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that you may visit.