Effective Date: 12/22/2022
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH ANY APPLICABLE ORDER FORM AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY SUBSCRIBING TO USE THE SERVICES (“YOU” OR “CUSTOMER”), AND RAPID REGISTERED AGENT, LLC AND ITS SUBSIDIARIES (“RRA”). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING, OR SUBSCRIBING TO USE THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICES OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT TO THIS AGREEMENT. THE TERMS OF ALL ORDER FORMS ENTERED INTER HEREUNDER SHALL BE INCORPORATED HEREIN BY THIS REFERENCE. YOU MAY NOT ACCESS OR USE THE SERVICES OR ENTER INTO THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
RRA may change these Terms from time to time at its sole discretion, and if it makes any material changes, it will attempt to notify you by sending you an email to the last email address you provided to RRA and/or posting a notice on RRA’s website. Therefore, you agree to promptly notify RRA of any changes in your email address. Any material changes to these Terms will be effective upon the next renewal date of the Agreement pursuant to the applicable Order Form. If you disagree with any changes to the Agreement, you must terminate your use of the Services prior to the next renewal of the Agreement.
DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the RRA Websites.
1.2 “Authorized User” means each of Customer’s employees, agents, partners and independent contractors who are authorized to access the RRA Websites pursuant to Customer’s rights under this Agreement.
1.3 “RRA Websites” means the RRA software-as-a-service application identified in an Order Form that allows Authorized Users to access certain features and functions through a web interface.
1.4 “Connector Credentials” means login or account credentials used by Customer to access certain third party accounts for which it intends to use the RRA Websites (e.g. Customer’s accounts with retail partners).
1.5 “Connector Data” means content or information obtained, at the direction of the Customer, through the connection of the RRA Websites to a third-party data source.
1.6 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services, including Connector Credentials and Connector Data but not including Usage Data.
1.7 “Documentation” means the technical materials provided by RRA to Customer in hard copy or electronic form describing the use and operation of the RRA Websites.
1.8 “Error” means a reproducible failure of the RRA Websites to substantially conform to the Documentation.
1.9 “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
1.10 “Order Form” means all written order forms or other ordering documentation, including online subscription forms, entered into by the parties hereunder and referencing this Agreement, identifying the applicable Services to be made available by RRA, and containing the pricing, subscription term, and other specific terms and conditions applicable to the Services.
1.11 “Professional Services” means professional services provided by RRA to Customer as described in any Order Form (as may be further elaborated in any statement of work).
1.12 “Services” means any services provided by RRA to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the RRA Websites.
PROVISION OF SERVICES.
2.1 Subject to the terms and conditions of this Agreement, including Customer’s payment of the fees set forth in the Order Form (“Fees”), RRA will provide Customer with access to the RRA Websites. On or as soon as reasonably practicable after the effective date set forth in an Order Form (the “Order Form Effective Date”) RRA will provide to Customer with Access Protocols for Customer and its Authorized Users to access the RRA Websites. Customer will prevent unauthorized access to, or use of, the RRA Websites, and notify RRA promptly of any such unauthorized use known to Customer.
2.2 Support Services. Subject to the terms and conditions of this Agreement, RRA will exercise commercially reasonable efforts to provide support for the use of the RRA Websites to in accordance with its standard policies and procedures.
INTELLECTUAL PROPERTY; DATA.
3.1 License Grant. Subject to the terms and conditions of this Agreement, RRA grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form to access and use the RRA Websites in accordance with the Documentation.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the RRA Websites, Licensed Material or Documentation (collectively, the “RRA Materials”), except as expressly allowed herein; (b) modify, adapt, alter or translate the RRA Materials; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the RRA Websites or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the RRA Websites, except as permitted by law; (e) interfere in any manner with the operation of the RRA Websites or the hardware and network used to operate the RRA Websites; (f) modify, copy or make derivative works based on any part of the RRA Websites or Documentation; (g) access or use the RRA Websites to build a similar or competitive product or service; (h) attempt to access the RRA Websites through any unapproved interface; or (i) otherwise use the RRA Materials in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the RRA Websites will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of RRA or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The RRA Materials, and all worldwide intellectual property rights in each of the foregoing, are the exclusive property of RRA and its suppliers. All rights in and to the RRA Websites and Documentation not expressly granted to Customer in this Agreement are reserved by RRA and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the RRA Websites, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, RRA grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.6 (No Assignment)), non-sublicensable license to use the Licensed Material for Customer’s analytics and data processing purposes.
3.5 Open Source Software. Certain items of software may be provided to Customer with the RRA Websites and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, RRA makes such Open Source Software, and RRA’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to RRA a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. RRA will not identify Customer as the source of any such feedback.
3.7 Usage Data. Customer also grants RRA a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, fully paid license to use, reproduce, display, distribute, transmit, perform, and create derivative works of the Customer Content in an aggregated or de-identified form (such data, once in aggregated or de-identified form, the “Usage Data”) during and after the term to: (A) improve the Services and RRA’s related products, services, and technology; (B) provide analytics and benchmarking services; and (C) generate and disclose statistics regarding use of the Services, provided, however, that no statistics will be disclosed to third parties in a manner that would identify Customer without Customer’s consent.
4.1 Connector Credentials. Customer agrees to provide to RRA any Connector Credentials solely via the RRA Websites.
4.2 Data Security. RRA shall (a) maintain and enforce an information security program including safety, physical and technical security policies and procedures with respect to its processing of Customer Content that meets or exceeds industry standard practices, (b) store Connector Credentials provided by Customer hereunder in secured, encrypted form, (c) delete any Connector Credentials within one business day of a written request from Customer for such deletion, (d) periodically test its systems for potential areas where security could be breached and monitor for suspected breaches, (e) promptly report to Customer any breach of security or unauthorized access to Customer Content that RRA detects or becomes aware of and (f) use diligent efforts to mitigate any breach of security or unauthorized access to Customer Content in a timely manner.
FEES AND EXPENSES; PAYMENTS.
5.1 Fees. The Fees and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged to your Payment Method (as defined below) on the specific billing date indicated on your “Account” page. The length of your billing cycle will depend on the type of subscription that you choose when you sign-up for the service, monthly or annual. In some cases your payment date may change, for example if your Payment Method has not successfully settled or if your paid subscription began on a day not contained in a given month. Visit RRA’s website and click on the “Account” page to see your next payment date. RRA may authorize your Payment Method in anticipation of subscription or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period. Fees shall be due and payable upon receipt of an invoice provided by RRA.
5.2 Payment Methods. To use the Services you must provide one or more current, valid, accepted methods of payment, as may be updated from time to time, which may include, if applicable, an account for ACH payment (a “Payment Method”). You authorize RRA to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to RRA for payment of Fees. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, RRA may suspend your access to the service until RRA has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
5.3 Updating your Payment Methods. To update your Payment Method, please email [email protected]. RRA may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize RRA to continue to charge the applicable Payment Method(s).
5.5 No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, other than termination by RRA due to Customer’s breach pursuant to Section 12.2, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, RRA may provide a refund, discount, or other consideration to some or all of RRA’s subscribers (“credits”). The amount and form of such credits, and the decision to provide them, are at RRA’s sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate RRA to provide credits in the future, under any circumstance.
5.6 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on RRA’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the RRA Websites to Customer. Customer will make all payments of Fees to RRA free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to RRA will be Customer’s sole responsibility, and Customer will provide RRA with official receipts issued by the appropriate taxing authority, or such other evidence as RRA may reasonably request, to establish that such taxes have been paid.
5.7 Interest. Any amounts 30 days’ past due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5.8 Promotions. Certain Services may start with promotional pricing or free trials (“Promotion”). Promotion eligibility is determined by RRA at its sole discretion and RRA may limit eligibility or duration to prevent Promotion abuse. To the extent applicable, the duration of the Promotion period of your subscription will be specified during sign-up and is intended to allow new and certain former subscribers to try the service. RRA reserves the right to revoke the Promotion and put your account on hold in the event that RRA determines that you are not eligible. For combinations with other offers, restrictions may apply. RRA will charge the Fees for your next billing cycle to your Payment Method at the end of the Promotion period and your subscription will automatically renew unless you cancel your subscription prior to the end of the Promotion period. To view the applicable Fees and end date of your Promotion period, visit RRA’s website and click the “Account” page.
CUSTOMER CONTENT AND RESPONSIBILITIES.
6.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for RRA to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for RRA to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants RRA a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services and (b) to use the Customer trademarks, service marks, and logos as required to provide the Services. By using the Services, you expressly authorize RRA to access your Connector Data maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. RRA will submit Connector Credentials to such third parties. You hereby authorize and permit RRA to use and store information submitted by you to accomplish the foregoing. For purposes of this Agreement, and solely to provide the Connector Data to you as part of the Services, you grant RRA a limited power of attorney, and appoint RRA as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN RRA IS ACCESSING AND RETRIEVING CONNECTOR DATA FROM THIRD PARTY SITES, RRA IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. The Customer Content, and all worldwide intellectual property rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to RRA in this Agreement are reserved by Customer.
6.2 Customer Warranty. Customer represents and warrants (1) that it has all necessary permissions and consents necessary to provide RRA the Customer Content and Connector Credentials and import the Connector Data into the RRA Websites, in each case, for the uses set forth herein and (2) that Customer Content and its use hereunder will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage RRA’s system or data; and (e) otherwise violate the rights of a third party. RRA is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the RRA Websites contrary to or in violation of the representations and warranties of Customer in this Section 6.2 Customer Warranty) constitutes unauthorized and improper use of the RRA Websites.
6.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the RRA Websites. Customer will have the ability to export Customer Content out of the RRA Websites and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
PROFESSIONAL SERVICES. Where the parties have agreed to RRA’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
WARRANTIES AND DISCLAIMERS.
8.1 Limited Warranty. RRA represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. RRA further warrants to Customer that the RRA Websites will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the RRA Websites not in accordance with this Agreement or as specified in the Documentation; (b) any use of the RRA Websites in combination with other products, equipment, software or data not supplied by RRA; or (c) any modification of the RRA Websites by any person other than RRA or its authorized agents. Provided that Customer notifies RRA in writing of any breach of the foregoing warranty during the Term, RRA will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.2 (Support Services) or, at RRA’s option, refund the fees paid by Customer for the Services which gave rise to the breach.
8.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RRA MATERIALS ARE PROVIDED “AS IS,” AND RRA MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RRA DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE RRA Websites WILL BE UNINTERRUPTED OR ERROR-FREE.
8.3 Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any products or features available to Customer on a trial, beta, early access, or similar basis (“Beta Services”), (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services are provided without any warranties of any kind and are provided on an “as-is” basis, (c) Sections 7.1 (Limited Warranty) and 11.1 (By RRA) and (d) RRA will have no liability arising out of or in connection with Beta Services.
LIMITATION OF LIABILITY
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO RRA DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RRA’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (1) IT S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 OR (2) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of RRA. Customer Content will be considered Confidential Information of Customer.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to RRA). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11.1 By RRA. RRA will defend at its expense any suit brought against Customer, and will pay any settlement RRA makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the RRA Websites infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the RRA Websites becomes, or in RRA’s opinion is likely to become, the subject of a claim of infringement, RRA may, at RRA’s option: (a) procure for Customer the right to continue using the RRA Websites; (b) replace the RRA Websites with non-infringing software or services which do not materially impair the functionality of the RRA Websites; (c) modify the RRA Websites so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the RRA Websites and Documentation. Notwithstanding the foregoing, RRA will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the RRA Websites not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the RRA Websites in combination with other products, equipment, software or data not supplied by RRA; or (iii) any modification of the RRA Websites by any person other than RRA or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of RRA, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 By Customer. Customer will defend at its expense any suit brought against RRA, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer Content, or (c) Customer’s breach or alleged breach of Sections 6.2 (Customer Warranty).
11.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
TERM AND TERMINATION.
12.1 Term. This Agreement will begin on the effective date of the Order Form and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for the period set forth in an Order Form (the “Initial Term”), unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional consecutive terms equal in length to the Initial Term unless, prior to the expiration of the then-current term, either (1) RRA gives written notice of non-renewal or (2) you cancel your subscription at least thirty (30) days prior to the expiration of the then-current term. You must cancel your subscription at least thirty (30) days before it renews in order to avoid billing of the Fees for the next billing cycle to your Payment. You can cancel your RRA subscription at any time by emailing [email protected], and you will continue to have access to the RRA service through the end of your billing period. If you cancel your subscription, your account will automatically close at the end of your current billing period.
12.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); and (c) any amounts owed to RRA under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 3.7 (Usage Data), 5 (Fees and Expenses; Payments), 8.2 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.3 (Termination for Breach), 11.3 (Effect of Termination), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
13.1 Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by RRA. Customer grants RRA the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on RRA’s website or other marketing or advertising materials. If you want to be exempted from this, you must let RRA know prior to purchasing the product or contact RRA’s Customer Success team. It may take up to 30 days to remove any press announcements, case studies, trade shows, or other marketing reasonably requested by RRA.
13.2 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Texas, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts of Travis County, Texas for any lawsuit filed there against Customer by RRA arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.3 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from RRA, or any products utilizing such data, in violation of the United States export laws or regulations.
13.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.6 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.7 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the RRA Materials.
13.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.9 Independent Contractors. Customer’s relationship to RRA is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of RRA.
13.10 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. RRA may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://www.goRRA.com.
13.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
13.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and RRA.