Terms and Conditions - Merchants
These terms and conditions for businesses ("Terms and Conditions") are an integral part of the Terms of Use Agreement ("Terms of Use") of the Application of 3-102-841630, S.R.L. (hereinafter “RAPDO”), signed between You (“Commerce”) and RAPDO and any entity or subsidiary belonging to the RAPDO business group, each the “Party” and jointly the “Parties”), in the Republic of Costa Rica.
Your continued use of the RAPDO Apps will constitute acceptance of these Terms and Conditions.
FIRST CLAUSE: Validity and Termination
The Agreement will become effective on the Effective Date as defined in the Terms of Use and will continue in effect for a period of 1 (one) year ("Term") and will be automatically renewed for additional periods of 1 (one) year, annually. Either Party may terminate the Contract when the other Party fails to comply with its obligations, if said failure has not been remedied within 5 (five) calendar days after receipt of notification of the failure. Unless otherwise established in the Terms of Use, the Parties may terminate the Contract early, without cause and without penalty of any kind, by written notice 30 (thirty) days in advance of the date, in which said termination should take effect.
SECOND CLAUSE: Declarations and Guarantees; Disclaimer
2.1 Representations and Warranties. The Parties accept and acknowledge that (a) their representatives have sufficient and necessary powers to enter into the Contract and that they will comply with the obligations derived from this Contract, (b) they are duly constituted and validly exist in accordance with the legislation of the jurisdiction in which they were incorporated, (c) have not entered into, and will not enter into during the Term of the Contract, another agreement that prevents them from fulfilling this Agreement, (d) will comply with all applicable laws, including but not limited to the obligations derived from legislation on personal data and consumer protection, as well as all requirements regarding advertising of products (“Products”), including having any permit or license necessary for their advertising; (e) that it possesses and maintains each one of the licenses, permits, authorizations that are necessary to carry out any commercial activity in accordance with this Agreement (“Required Licenses”). Upon RAPDO's request, you must provide copies of the Required Licenses. You will immediately notify RAPDO of any change, expiration, revocation, renewal or termination of any of the Required Licenses and, upon RAPDO's request, provide copies of the new Required Licenses.
2.2 Disclaimer. Except as provided in the Agreement, the Parties expressly disclaim any express or implied warranty with respect to their products or services, or any part thereof, including without limitation, any implied warranties of merchantability and fitness for particular purposes and implied warranties arising from the course of execution of the Contract.
THIRD CLAUSE: Compensation
3.1 Indemnified Claims. Each Party (the "Indemnifying Party") will indemnify, defend and hold harmless the other Party, its affiliates, and their respective directors, officers, employees and agents (the "Indemnified Party"), against all claims, damages, loss or expense (including reasonable attorneys' fees) (collectively the “Losses”) with respect to any third party claim arising out of or related to: (a) the negligence or willful misconduct of the Indemnifying Party and its employees or agents with respect to the obligations arising from the Contract, (b) the failure of the Indemnifying Party to comply with its representations and warranties included in the Contract; or (c) the Indemnifying Party's infringement of the intellectual property rights of third parties with respect to the use of its Marks, only if such Marks were used by the Indemnified Party in a manner approved by the Indemnifying Party. Additionally, you will indemnify, defend and hold harmless RAPDO against any and all losses with respect to any third-party claim resulting from or relating to any damage arising from your actual or alleged violation of any code, rule or regulations that are applicable regarding the sale of food and beverages, health or safety.
3.2 Procedure. The Indemnified Party must promptly notify the Indemnifying Party of any demand or claim that is the subject of indemnification. The Indemnifying Party will assume the obligation to defend the claim or demand through the attorney that it has designated and that is accepted by the Indemnified Party. The Indemnifying Party will not reach any judicial or extrajudicial agreement, or award, without having the prior written approval of the Indemnified Party, who may not unreasonably deny it. The Indemnified Party will cooperate with the Indemnifying Party in the defense of any claim, at the Indemnifying Party's expense.
3.3 Employment Relationship. Each Party will be solely responsible for timely, accurate and faithful compliance with the obligations resulting from the employment relationship with the personnel it employs for the purposes of the Contract in accordance with applicable laws and regulations. The Parties expressly agree to settle in peace and safety and to pay the damages and losses caused to the other Party, as well as the expenses and costs due to any action, claim, demand, controversy and/or procedure in labor matters that is initiated and/or or is filed against it by the employees of the other Party, due to any violation of the obligations established in the Contract and/or in the law.
Both Parties recognize that there is no employment or subordination relationship between the Company and the delivery partners, who are third parties that independently provide the users of the RAPDO Apps (“Users”) with delivery services and/or selection services, packaging and payment (“Delivery Partner”).
FOURTH CLAUSE: Limits of Liability.
Except for indemnification obligations, or a Party's breach of confidentiality obligations, (a) in no event will the Parties be liable for any claim for indirect, voluntary, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business of the Company or any third party arising from this Agreement, or the loss or inaccuracy of data of any kind, whether based on contract, tort or any other legal theory, even if such Party has been advised of the possibility of such damages; and (b) the total cumulative liability for any type of damages attributable to each Party under this Agreement will not exceed US$100,000 (ONE HUNDRED THOUSAND DOLLARS, legal tender of the United States of America). This limitation of liability and exclusion of certain damages will apply regardless of the successor in title or the effectiveness of other legal remedies.
FIFTH CLAUSE: Insurance
During the Term and for one year thereafter, the Parties will maintain General Civil Liability Insurance that covers their liability for bodily injury, death and property damage, as well as civil liability for intoxication in the case of establishments dedicated to the sale of Products.
Additionally, RAPDO may maintain Automotive Civil Liability Insurance with limits per accident, for bodily injuries or material damage to third parties derived from the ownership, maintenance or use of hired, rented or non-owned automobiles. This policy will not be applicable in cases in which you use the RAPDO Apps for the delivery modalities with your own personnel, take-out option and option to eat in the Place.
SIXTH CLAUSE: No Advertising
Neither Party may issue a press release or refer to the other Party in any manner with respect to this Agreement or otherwise, without the prior written consent of such Party.
SEVENTH CLAUSE: Intellectual Property
7.1 Trademark License; Restrictions.
The Party that owns the Marks ("Licensor") and the Party that receives authorization to use the Marks ("Licensee"), including, if the Company, its affiliates, agree that the Licensor grants to the Licensee exclusively during a limited license, royalty-free, non-exclusive, non-transferable, inalienable, without the right to sublicense, to use the Licensor Marks for the sole purpose of carrying out the promotional activities of the Agreement. The term “Trademarks” will mean trademarks, service marks, trade names, logos, commercial notices, slogans, and any other distinctive sign of the Parties. All use by Licensee of Licensor's Marks must be in a form and format approved by Licensor, and Licensee may not use or modify Licensor's Marks without the prior written authorization of Licensor. However, any use of your Mark by RAPDO or its affiliates in connection with making the Products available through the RAPDO Apps will not require prior written authorization. All goodwill related to Licensee's use of Licensor's Marks will always inure to the benefit of Licensor. The Marks shall always remain the exclusive property of the Licensor. Except as provided in this section, the Licensor shall not grant the Licensee any license or rights to any intellectual property or other proprietary rights. Any rights not granted in this section are expressly reserved.
7.2 Non-Development. The Parties agree and acknowledge that they will not develop technology, content, media or any other type of intellectual property using the intellectual property of the other Party, unless there is express, written and separate authorization between the Parties prior to the initiation of such activities.
7.3 Intellectual Property Photographs and Other Materials. You agree that RAPDO is the owner of all intellectual property rights to certain photographs and materials that you may use when registering in the RAPDO Apps. You agree that you may not use such photographs or materials with a third party without prior written consent from RAPDO. Likewise, the content, media and any other materials used or provided by one of the Parties in connection with the Contract will not infringe or violate intellectual property or publicity rights of third parties.
7.4 No Affectation of the RAPDO Brand. You agree that, by using the RAPDO Apps to offer your Products, you will make good use of the RAPDO brand. Consequently, you agree that you will not offer packaging or other types of promotional materials with the brand of other platforms similar to RAPDO in the orders of your Products that Users place to you through the RAPDO Apps.
EIGHTH CLAUSE: Confidentiality
8.1 Definition. The term "Confidential Information" shall mean any confidential information or business-developed information, technical or financial information, or materials of a Party or its affiliates (“Disclosing Party”) delivered verbally or physically, to the other Party or its affiliates (“Receiving Party”) in connection with this Agreement of such Confidential Information shall include the terms of the Agreement. Confidential Information will not include information that (a) was previously known to the Receiving Party without an obligation of confidentiality, (b) was acquired by the Receiving Party from a third party that was not subject to an obligation of confidentiality, ( c) is or becomes public information without responsibility of the Receiving Party, or (d) the Disclosing Party has granted written authorization to disclose the information, provided that the information disclosed is limited to that authorized to be disclosed.
8.2 Requirements. The Receiving Party agrees and acknowledges that (a) it will use the Confidential Information of the Disclosing Party solely for the purposes of the Agreement and (b) it will not disclose the Confidential Information to any third party, except for the employees or agents of the Receiving Party, in the to the extent that it is necessary to disclose such Information, who will be subject to the obligations of confidentiality and restricted use of the Information. Notwithstanding the foregoing, the Receiving Party will be solely responsible for any breach of the confidentiality obligations established in this Agreement by its employees or agents. The Receiving Party will protect the Confidential Information owned by the Disclosing Party, with the same diligence and care with which it protects its own Confidential Information, which in no case will be less than a reasonable standard of protection. In the event that the Receiving Party receives a court order or any administrative or judicial notification requiring the disclosure of Confidential Information owned by the Disclosing Party, the Receiving Party will notify the Disclosing Party in writing as soon as possible of said authority request so that the Disclosing Party can exercise any defense to which it is entitled. Upon the Disclosing Party's request, the Receiving Party will return or destroy all copies of any Confidential Information owned by the Disclosing Party. The provisions of this Section will expire 3 (three) years after termination of the Agreement, except for Confidential Information that constitutes a "trade secret" under applicable law, for which the provisions of this Section will survive indefinitely.
8.3 Privacy and Data.
You agree to collect, use, disclose, store, retain, or otherwise process Personal Data exclusively for the purpose of complying with the provisions of this Agreement. You will maintain the accuracy and integrity of any Personal Data that the Company provides to you and that remains in your possession, custody or control. You agree to store the Personal Data provided to you by the Company exclusively through the software and tools made available to you by the Company. "Personal Data" means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including, but not limited to, name, contact information, precise location information, persistent identifiers, and (iii) any information that may be considered “personal data” or “personal information” under the applicable legal framework or that may also be considered “Personal Data” under the applicable law that you (a) obtain from RAPDO in connection with this Agreement or (b) that you share with RAPDO. It should be clarified that the “Personal Data” is subject to the RAPDO Privacy Policy, with the modifications or updates that RAPDO may make when applicable, valid at the time of publication of the updated version of the Privacy Policy on support@rapido.com.
8.3.1 Compliance with Data Protection Laws. In the event that you provide RAPDO with Personal Data of an individual, you represent that you have previously obtained the necessary consent for this and have complied with any other legal obligation to legitimately provide the Personal Data to RAPDO.
8.3.2 Restrictions. In the event that you receive data from RAPDO, you agree that (a) you will process it only for legitimate business reasons and retain it only as long as necessary; (b) access to Personal Data will be limited to its employees who have a legitimate business need to access that Personal Data; (c) You will not disclose Personal Data to any third party, including suppliers, unless expressly authorized in writing by RAPDO. You must not rent or sell Personal Data for any reason. You must not use Personal Data in any way that harms RAPDO or benefits a competitor of RAPDO; and (d) You will not merge or combine Personal Data with other data except as necessary for the performance of this Agreement.
8.3.3 Security. In the event that you receive Personal Data from RAPDO, you agree to implement appropriate legal, technical and organizational measures to protect Personal Data against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration or disclosure, such as also against the violation or attempted violation of security measures on your part ("Data Security Incident"). You must notify RAPDO immediately if you become aware of, or have reason to believe that a Data Security Incident has occurred, including at least: (1) a description of the Data Security Incident, including the location, date and time in which the Data Security Incident occurred; as well as the location, date and time the Data Security Incident was discovered, (2) a description of the measures you took, or plan to take, to investigate the Data Security Incident as well as the measures you took to mitigate such consequences; (3) an overview of the Personal Data affected, including the types of Personal Data and whether the Personal Data was encrypted or redacted; (4) the number of affected data subjects, as well as the city, state and/or country of the data subjects; and (5) the expected consequences of the Data Security Incident. Upon discovery of such a Data Security Incident, you will (a) take all reasonable measures to investigate, remediate and mitigate the effects of the Data Security Incident and (b) provide RAPDO with reasonably satisfactory assurance that such Data Security Incident Data Security will not happen again.
8.3.4 Conservation and Disposal. Unless otherwise required by applicable law, each Party shall, and require any processor and/or sub-processor, to process and maintain Personal Data in its possession, custody and control only for as long as necessary to comply with its obligations under this Agreement.
NINTH CLAUSE: Conventional Penalty
In those cases in which you or any of the people authorized by you carry out any of the following behaviors: (i) modify the orders without the User's consent; and/or (ii) carry out activities in collusion with the Delivery Partner and/or the User, in which RAPDO is financially affected; It will be considered that you have breached this Contract, in which case, as a conventional penalty, RAPDO may provisionally withhold the amounts in your favor derived from any transaction carried out by you in the RAPDO Apps and related to non-compliance conduct as previously described.
Based on this determination and provisional retention, RAPDO will carry out, with its own means, an analysis of the non-compliance by you, and may request information. The definition by RAPDO of the non-compliance will not exceed 90 (ninety) business days from the decision to withhold the amounts. Once this term has passed and without having informed you of your non-compliance, RAPDO will release the withheld amounts and deliver them to you. In the event that RAPDO determines that You have breached this Contract, RAPDO may definitively retain the amounts as a conventional penalty and terminate this Contract.
TENTH CLAUSE: Applicable Law and Jurisdiction
These Terms and Conditions, as well as the relationship between RAPDO and the User, will be governed and interpreted in accordance with the legislation in force in the Republic of Costa Rica, and any divergence related to this must be resolved before the ordinary courts of the City of San Jose, Costa Rica.
ELEVENTH CLAUSE: Commission
The Merchant accepts that RAPDO charges a commission of fifteen percent (15%) on each
sale you make, for the use of the Application. RAPDO reserves the right to modify the above mentioned
percentage at any time. If there is any modification in the percentage of the
commission, it will be announced to the Merchant through the RAPDO website, and the consequent
updating of the Terms and Conditions.
TWELFTH CLAUSE: Miscellaneous
Nature of the Legal Relationship. The Parties recognize and agree that the legal relationship between them derived from this contract is commercial in nature. For the territories in which it applies, the Parties recognize the commercial nature of the legal relationship in the following terms: (i) the Parties freely agree to do so; (ii) both Parties are traders; (iii) RAPDO is a merchant that acts within its corporate purpose, so the legal relationship created is necessarily commercial, and if it is a commercial relationship for one of the Parties, it is a commercial relationship for both; (iv) this legal relationship seeks to generate profits for both Parties; and (v) RAPDO has the objective of providing a technological application of intermediation services so that you can connect with Users.
Regulated Products. Products whose commercialization through the RAPDO Apps is allowed if you have the Required License, not limited to but including (i) drugs, pharmaceutical products, controlled substances or over-the-counter medications, vitamins or supplements; (ii) hemp-derived CBD; (iii) fragile items; (iv) nicotine or tobacco products; (v) sexual aid articles; (vi) adult toys and movies; (vii) money, gift cards or transferable securities.
Restricted Products. Products whose commercialization is not permitted through the RAPDO Apps are, among others: (i) animals of any size (in particular, endangered species); (ii) illegal items; (iii) dangerous or harmful articles, including, but not limited to, weapons, explosives, poisonous or flammable articles (including paints or adhesives containing a flammable liquid) (iv) regulated species (for example, noxious plants, herbs, prohibited seeds, etc. and/or (v) any item for which you do not have permission to ship.
Notices and communications. Any notice or communication in relation to the Contract must be sent: (i) to RAPDO at the address located in Puntarenas, Osa, Bahía Ballena, one kilometer south of Dominical beach, one hundred and fifty meters southeast of the Roca Verde de Osa hotel, office Pacific Coast Law, Costa Rica; and (ii) to you at the address established in the Contract or informed to RAPDO through another reliable means. You authorize receiving automated calls and/or text messages sent by the Company or a representative of the Company. If either Party does not exercise the right to demand compliance with any obligation derived from the Contract, it will not be interpreted as a waiver of said right. If a judge or competent court with jurisdiction over the Agreement determines that any provision of the Agreement is unenforceable or invalid, the validity of the remainder of the Agreement will not be affected, and will remain in force. The Contract may only be assigned by one of the Parties after written notification and without the need for consent of the other Party in the following cases: (a) to a company affiliated with the Party or (b) once the other Party has notified, when the sale of all the shares, business or assets is to be carried out. Nothing agreed in the Contract will be understood as an association, joint venture, or agency relationship between the Parties. Likewise, neither Party may enter into contracts on behalf of the other or assume responsibilities or obligations on behalf of the other without a separate written contract between the Parties. This Contract constitutes the sole and complete agreement between the Parties with respect to its subject matter, and supersedes any other verbal or written agreement, contract, commitment or contract that they may have previously entered into with respect to the same subject matter and the obligations derived therefrom. If there is any conflict between these Terms and Conditions, the Terms of Use or any other agreement where specific conditions are regulated between the Parties, these will prevail over the provisions contained in these Terms and Conditions, except as established in Annex A hereof.
Other provisions. If any provision of these Terms and Conditions is considered illegal, void or unenforceable, whether in whole or in part, in accordance with Costa Rican law, it will be considered as not forming part of these terms and conditions, the legality remaining unaffected, validity and enforceability of the remaining provisions of these terms and conditions. In that case, RAPDO as determined may replace said illegal, void or unenforceable provision, in whole or in part with a legal, valid and enforceable provision that has, to the extent possible, a similar effect to that of the illegal provision, void or unenforceable, given the contents and purpose of these terms and conditions. These Terms and Conditions constitute the entire contract and understanding between the parties in relation to the subject matter and supersede and replace all prior or contemporaneous contracts or agreements in relation to such subject matter.
