This subscription agreement (“Agreement”) is entered into between Riversand Technologies, Inc. (“Riversand”) and the entity that has executed the associated Order Form (“Customer”) as of the Subscription Effective Date identified on such Order Form (the “Effective Date”). In consideration of Riversand’s obligation to provide the products and services described in the Order Form (the “Offering”), Riversand and Customer hereby agree as follows:
1. Subscription Service. Subject to the terms and conditions of this Agreement and during the Term, Riversand shall make the Offering available to Customer and those of its and its Affiliates’, suppliers’ and contractors’ personnel authorized to use the Offerings for Customer’s internal business operations (collectively, “Users”) by means of supported web browsers. The terms of this Agreement shall also apply to updates and upgrades provided by Riversand for the Offering during the Term. Riversand shall host the Offering on its internet portal and may update the functionality, user interface, usability and other user documentation, training and educational information of and relating to the Offering from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Offering and Riversand’s customers’ use of its offerings. Customer shall comply with the terms and use restrictions stated in this Agreement and in the operational guidelines and policies governing the operation of Riversand’s systems (including the most-recent versions of the Service Level Agreement (“SLA”), Privacy Statement, Maintenance and Support Policy, and Data Policy, each as attached or as may otherwise be available on Riversand’s website at www.riversand.com/essential-pim-agreement/ (collectively, “Operating Policies”)). Customer shall be solely responsible for (a) the accuracy, quality and legality of the data entered into the Offering (“Customer Data”), (b) ensuring the Offering is only used in accordance with all applicable user guides, installation guides and manuals, solution package descriptions, operational guidelines and policies then in effect (“Documentation”), and (c) obtaining and maintaining any equipment and ancillary services reasonably required to use the Offering, including, without limitation, working space at Customer locations, computers, modems, servers, hardware, software, operating systems and telecom facilities and services (collectively, “Equipment”). Customer shall be responsible for the reliability and security of the Equipment, User accounts, passwords and files, and for any and all uses of Customer’s account or the Equipment. Customer shall allow Riversand to access Customer’s identity provider system as reasonably required in connection with the provisioning of access rights and roles for Users. Customer shall comply with all applicable laws and regulations (including, without limitation, laws relating to the use of the Offering and to transmission of Customer Data. Riversand reserves the rights to monitor and audit Customer’s use of the Offering and to prohibit any use of the Offering it reasonably believes may result in a violation of the obligations and use limitations provided by this Agreement.
2. Estimates/Work Orders. Customer’s acceptance of an Offering and of Riversand’s obligation to provide such Offering shall be effective upon Customer’s execution of an estimate, statement of work or order form issued by Riversand (referred to herein as an “Work Order”) relating to such Offering. Each Work Order shall include a description of the Offering to be provided and the deliverables, schedules, resources, assumptions, fees, and any other terms and conditions relative to such Offering. Except as otherwise provided in the Work Order or this Agreement, each Work Order is non-cancellable. For any order by Customer’s Affiliate, the term “Customer” shall refer to Customer and such Affiliate(s).
3. Restrictions. Riversand’s obligation to make the Offerings available to Customer is at all times subject to compliance with the limitations set forth in the Work Order, as well as the following:
- User accounts may not be shared or used by more than one individual contemporaneously;
- TheOffering shall not be used in excess of the usage limitations applicable to the Offering as specified in this Agreement and the Work Order, provided that Customer may change, add or remove Users in accordance with the procedure set forth herein;
- Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Offerings or any software, documentation or data related to the Offerings; modify, translate, or create derivative works based on the Offerings (except to the extent expressly authorized by Riversand); allow any unauthorized individual to access the Offering; or use the Offerings for any unauthorized purpose (including the provision of services for third parties). Customer shall immediately notify Riversand in the event of any unauthorized use of the Offering, and shall be solely responsible for maintaining adequate controls over Customer’s transmissions of data to the Offerings and for monitoring such transmissions; and
- All rights not expressly granted to Customer are reserved by Riversand.
4. Term, Fee, Payment & Taxes.
- Term. This Agreement and Customer’s subscription to the Offering will be in effect for an initial “Subscription Term” extending for the duration indicated in the applicable Work Order for such Offering (the “Term”) . Riversand shall provide Customer with a general renewal reminder and a renewal Work Order in advance of the end of the then-current Subscription Term. Unless otherwise specified in a Work Order, the Subscription Term and fees with respect to additional Offerings, Users, functionality and other items procured during an existing Subscription Term will terminate on the same date as that for the applicable Offering and will be prorated for the portion of the Subscription Term remaining at the time such items are added.
- Fees and Payment. Customer agrees to pay to Riversand all fees associated with the Offering (including subscription fees and reasonable out-of-pocket expenses incurred in connection with the Offering) in the form and amounts and within the time frame specified on the applicable Work Order, provided if no payment terms are provided on the Work Order, payment shall be due within 30 days from the date of Customer’s receipt of the invoice and shall be paid in U.S. dollars. All fees are non-cancelable and non-refundable, except as otherwise explicitly stated in the applicable Work Order or this Agreement, and shall be deemed accepted unless disputed in writing within thirty (30) days from invoice date, in which case Customer shall pay all undisputed amounts when due. Unless otherwise agreed in writing, the payment terms applicable to a Subscription Term will remain in effect for any Renewal Term, provided that fees shall be due on the first day of the Renewal Term. All fees payable to Riversand hereunder that remain unpaid after the due date shall be subject to a late charge equal to the lesser of 1.5% per month which interest will accrue from the due date for payment until the date of actual receipt by Riversand of the full amount owed in cleared funds. Pricing for Offerings under renewal Work Orders shall be set at Riversand’s then-current pricing, unless otherwise agreed in writing. In the event Customer fails to make timely payments, Riversand may, in addition to any other rights available to it, suspend its obligations under this Agreement in whole or in part or suspend Customer’s access to the Offering. Annual fees for any Offering may be increased by Riversand over the prior year’s fee in Riversand’s discretion based upon changes in cost structures, provided such increase will not exceed ten percent (10%) of the prior year’s fee for such Offering. If the fees for all or any part of the Offering are based on usage of the Offering, then Riversand may access and use Customer’s usage data as reasonably necessary to determine the fees for the applicable feature or functionality.
- Taxes. Customer shall be liable for all federal, state and local taxes associated with the Offering, including without limitation sales and use taxes, value-added taxes, goods and services taxes, consumption taxes, duties, fees, and levies of any kind, and penalties and interest related thereto (“Taxes”). If Riversand has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Riversand with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Notice. Notices, requests, statements or other communications provided for under this Agreement shall be in writing and shall be considered duly delivered (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, if sent to the other Party at its address first written above or such other address as either party may provide to the other party in accordance with this Section.
- Termination. Upon termination of this Agreement, all of Customer’s access rights to and use of the Offerings, and all other rights set forth in this Agreement, shall, subject to Section 9(b), cease immediately. Either party may terminate this Agreement or suspend access to the Offering with immediate effect upon delivery of written notice to the other Party in the event that the other Party (each of the following, a “Default”):
- materially breaches any of the terms or conditions of this Agreement;
- is or becomes insolvent, or becomes a party to any bankruptcy, liquidation or receivership proceeding (whether voluntary or compulsory);
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- ceases or threatens to cease to carry on its business, or if an order is made or a resolution is passed for its winding up.
Notwithstanding the foregoing, Customer may not terminate this Agreement for Riversand’s default unless Riversand has failed to commence to cure such material breach within thirty (30) days of receipt of Customer’s notice thereof. In the event of a termination resulting from Customer’s default, Customer shall promptly pay Riversand in full for all fee amounts attributable to the Offering through the remainder of the Term, together with all damages, costs and expenses incurred by Riversand as a result of such termination.
a. Riversand warrants that, during the applicable Subscription Term, (a) the Offering will conform in all material respects to the then-current Documentation, and (b) any services incorporated into the Offering will be provided in accordance with the highest and best standards of care and diligence practiced by recognized technology service providers in performing services of a similar nature. If, during the foregoing warranty period, it is shown that the foregoing standards have not been met, and Customer notifies Riversand of such nonconformity in writing within thirty (30) days from the date Customer knew or should have known of such nonconformity, Riversand shall (i) perform, at its cost, such corrective services as may be necessary to remedy such nonconformity or (b) if Riversand determines it is unable to substantially correct such nonconformity in a commercially reasonable manner within a period of fifteen (15) days, Riversand may terminate access to the non-conformity Offering and refund all pre-paid fees attributable to such Offering for the remainder of the Term. This warranty does not cover nonconformities caused by Customer's abuse, misuse, accident, alteration, unauthorized modification or installation of the Offering, any use of the Offering contrary to the Documentation or the terms of this Agreement, or scheduled maintenance or unscheduled emergency maintenance (whether by Riversand or by third-party providers). Customer acknowledges that Riversand does not control the transfer of data over the Internet, and that the Offering may be subject to service interruptions, limitations, delays, and other problems inherent in the use of the Internet and other communications facilities, and agrees that Riversand shall not be responsible for any delays, delivery failures or interruptions, or other damages resulting from such problems or from other causes beyond Riversand’s reasonable control. Subject to the other provisions of this Agreement (including Riversand’s obligations and Customer’s rights with respect to protection of Customer Data), Riversand makes no warranty that the Offering will be uninterrupted or entirely free from security vulnerabilities, defects, errors or bugs, nor does it make any warranty as to the results that may be obtained from the use of the Offering. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, RIVERSAND MAKES NO WARRANTIES, REPRESENTATIONS OR GUARANTEES REGARDING THE OFFERING, INCLUDING ANY WARRANTIES FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS, AND ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS MAY BE SPECIFICALLY PROVIDED TO THE CONTRARY IN THE SLA, CUSTOMER’S EXCLUSIVE REMEDIES AND RIVERSAND’S SOLE OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH DEFECTS IN THE OFFERING, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, SHALL BE THOSE STATED IN THIS SECTION.
6. Limitations of Liability.
a. People and Property. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, RIVERSAND SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD CUSTOMER HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LIABILITY, LOSSES AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND OTHER COSTS OF DEFENSE) ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR RIVERSAND’S PERFORMANCE OF SERVICES HEREUNDER. LIKEWISE, AND ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, CUSTOMER SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD RIVERSAND AND ITS THIRD PARTY PROVIDERS (HEREINAFTER COLLECTIVELY REFERRED TO AS RIVERSAND FOR PURPOSES OF THIS ITEM), HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LIABILITY, LOSSES AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) ATTRIBUTABLE TO BODILY INJURY, SICKNESS, DISEASE, DEATH OR INJURY TO THE EMPLOYEES OF CUSTOMER OR DAMAGE OR DESTRUCTION OF PROPERTY OF CUSTOMER, INCLUDING LOSS OF USE RESULTING THEREFROM AND ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OF SERVICES HEREUNDER, IRRESPECTIVE OF RIVERSAND’S FAULT, NEGLIGENCE, OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY.EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER PARTY SHALL BE OBLIGATED TO DEFEND THE OTHER FOR A CLAIM ARISING FROM THAT OTHER PARTY’S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT.
b. Intellectual Property. This section 6(b) states each party's entire liability and the other party's sole and exclusive remedy for intellectual property infringement claims or allegations by a third party. Neither party shall have the right to use the trademarks, service marks, or other proprietary symbols or designations (“Trademarks”) of the first party without the written consent of the other party, except as otherwise described herein. Neither party will combine the other's Trademarks so as to effectively create a unitary composite mark, nor shall it use any product name or Trademark in a manner that is confusingly similar to the other party's Trademark. Customer grants to Riversand (and applicable third party providers), a nonexclusive, irrevocable, royalty-free, worldwide right to use or display any Trademarks that Customer provides Riversand for use in Customer's user interface for the Offering, subject to Customer's reasonable approval of each such use. Customer shall indemnify and hold Riversand harmless from any claim instituted by a third party and asserted against Riversand that Customer Data or Customer intellectual property infringes any United States patent, copyright, trade secret, or other proprietary right of a third party. Riversand agrees to indemnify and hold Customer harmless from any patent infringement or other intellectual property infringement claim brought against Customer by a third party alleging that an Offering when used in accordance with the Documentation infringes any United States patent, copyright, trade secret, or other proprietary right of a third party (“IP Claim”), provided that Customer:
- promptly notifies Riversand in writing of any such IP Claim;
- ii. allows Riversand sole authority to control and direct the investigation, preparation, defense and settlement of the IP Claim, provided, however, that Customer shall have the right to participate in any settlement and compromise negotiations that would require any changes to the Offering or that would require any action or restraint of action by Customer and to consent to any settlement that would require the payment of money by Customer or would impose any limitations on Customer; and
- assists and cooperates with Riversand as reasonably required in the defense of such IP Claim.
In no event will Riversand have any obligations or liability with respect to any IP Claim (a) caused by or resulting from (i) Customer's abuse, misuse, accident, alteration, unauthorized modification or installation of the Offering, or any use of the Offering contrary to the Documentation, the Operating Policies or the terms of this Agreement; (ii) a settlement entered into by Customer, which Riversand has not approved in writing; (iii) the unauthorized modification of the Offering by or on behalf of anyone other than Riversand; or (iv) the use of an outdated release of the Offering extending more than a reasonable period of time after Riversand has released an updated version if the claim or action would have been avoided by use of the most current release, and Customer knowingly and intentionally declined to implement such latest release, and Customer was given an opportunity to use such most current release for no additional fee; or (b) based upon portions or components of the Offering (i) not supplied by Riversand; (ii) made in accordance with Customer’s instructions; (iii) combined with other products, processes or materials, where the alleged infringement relates to such combination; or (iv) if Customer continues the allegedly infringing activity after being notified of the potential existence thereof.
c.Exclusion of Consequential Damages. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, NEITHER RIVERSAND NOR CUSTOMER SHALL BE RESPONSIBLE OR HELD LIABLE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE OFFERINGS PROVIDED HEREUNDER AND IRRESPECTIVE OF EITHER PARTY’S FAULT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY, FOR (A) SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (B) LOSS OR INTERRUPTION OF USE, LOSS OF PROFITS, LOSS OF PRODUCT, BUSINESS INTERRUPTION, INACCURACY, LOSS OR CORRUPTION OF DATA OR COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY.
d. Limitation on Liability. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS AND CONTRACTORS UNDER OR IN CONNECTION WITH THE OFFERINGS PROVIDED UNDER THIS AGREEMENT WITH RESPECT TO A GIVEN CALENDAR YEAR SHALL NOT EXCEED THE AMOUNTS RECEIVED BY RIVERSAND DURING SUCH ONE YEAR PERIOD PRECEDING THE DATE OF SUCH CLAIM, AND EACH PARTY HEREBY ACKNOWLEDGES AND WAIVES ANY AND ALL FURTHER LIABILITY, LOSS, COST AND EXPENSE IN EXCESS OF SUCH AMOUNT, IRRESPECTIVE OF EITHER PARTY’S FAULT OR NEGLIGENCE AND WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE.
e. Acknowledgement; Exceptions. TO THE EXTENT REMEDIES AT LAW HAVE BEEN EXPRESSLY RESERVED IN THIS AGREEMENT, THE PURSUIT OF SUCH LEGAL REMEDIES SHALL REMAIN SUBJECT TO THE WAIVERS, DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY, LIMITATIONS OF LIABILITY AND INDEMNITY OBLIGATIONS CONTAINED IN THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.
7. Confidentiality and Work Product.
a. Confidentiality. . In connection with the Offering, each party acknowledges that it may have access to confidential and proprietary information of the other party (“Confidential Information”). “Confidential Information” include the Offering in any embodiment; the terms and conditions of this Agreement (including pricing); a Party's business, technical and financial information; the features, functionality and performance of the Offering; any materials, data, documentation, or specifications provided by either party pursuant to this Agreement; inventions and other proprietary procedures and processes; product and program names, models, specifications and descriptions; research and development information; implementation methodologies; names and other information of suppliers; and pricing. For purposes of this Section 7(a), the party disclosing Confidential Information is the “Discloser” and the party receiving such Confidential Information is the “Recipient”. Recipient shall (i) use the same degree of care to protect the confidentiality of Discloser's Confidential Information that Recipient uses to protect its own Confidential Information of a like nature, but in no event less than reasonable care; (ii) not disclose such Confidential Information or any part thereof to any third party without Discloser’s consent; (iii) instruct and require all of its and its affiliates’ officers, employees and contractors (“Representatives”) having access to such Confidential Information to maintain the confidentiality of the Confidential Information on terms no less restrictive than those set forth herein; and (iv) not use, reproduce, or copy such Confidential Information, except as expressly permitted herein. The foregoing notwithstanding, Riversand may disclose Customer's Confidential Information to its third party providers solely to the extent required in connection with the Offerings to be provided under the Agreement and shall have the right to use and disclose Customer Data in accordance with the limitations set forth in the Data Policy. In addition, Recipient may disclose Confidential Information of Discloser as needed to comply with a court order, subpoena, or other government demand (provided that, unless otherwise prohibited by applicable law, Recipient first notifies Discloser and gives Discloser the opportunity to challenge such court order, subpoena, or government demand). The obligations in this section shall not apply with respect to any information that: (i) is or becomes publicly available through no wrongful act or omission of Recipient; (ii) Recipient can demonstrate was in its or its affiliates lawful possession prior to disclosure; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient's disclosure; or (iv) Recipient can demonstrate was independently developed by Recipient without reference to any Confidential Information. Customer acknowledges that any breach of the obligations hereunder with respect to Confidential Information may cause Riversand irreparable injury for which there are inadequate remedies at law and agrees that in the event of such breach Riversand shall be entitled to seek specific performance of the confidentiality obligation and injunctive relief in addition to all other remedies available to Riversand at law or in equity. The obligations in this Section shall survive the expiration or termination of this Agreement for any reason and remain in effect for a period of ten (10) years following any such expiration or termination.
b. Ownership. Except as may otherwise be specifically provided in this Agreement, Riversand shall retain all of its rights, title and interest in and to all (i) Offerings, together with all Documentation, data, software (including object and source code), proprietary technology, inventions, processes, documentation, data and other information and materials created, owned or developed by or for Riversand and in existence prior to the Effective Date; (ii) all work product developed by Riversand resulting from the Offerings (iii) all know-how, designs, specifications, databases, computer software and other proprietary rights developed, owned or used by Riversand independently of its obligations under this Agreement; (iv) Riversand Confidential Information; (v) any copies, modifications to, or derivatives of any of the foregoing; and (vi) all intellectual property rights anywhere in the world, whether registrable or unregistrable, in any of the foregoing. Notwithstanding anything to the contrary in this Agreement, each Party shall have the right to utilizeinformation publicly known or been acquired in the conduct of similar work performed for another customer, but excluding Customer's Confidential Information.
c. Exports; Federal Government End Use. Customer may not remove or export from the United States or allow the export or re-export of the Offering or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The Parties agree that no Offering or Customer Data shall be exported without the written consent of the owner of such Customer Data or Offering. Customer hereby represents and warrants that neither Customer, nor any User, is: (i) prohibited by United States export laws or regulations from receiving or using United States origin goods or services; (ii) located in, a legal entity formed in, or a citizen of, any country subject to United States sanctions or embargoes, or, (iii) controlled by an entity described in (i) or (ii). To the extent the Offering, including related software and technology, is delivered to an end user constituting the federal government or any of its agencies, Riversand provides the Offering subject to the following: as defined in FAR section 2.101, the Offerings and related documentation are “commercial items” and, according to DFAR section 252.227 7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation” and if a government agency requires any rights other than those customarily offered to the public, it must negotiate with Riversand to determine if there are acceptable terms for granting those rights.This Section shall survive expiration or termination of this Agreement.
d. Publicity. Customer agrees that Riversand may use Customer’s name on customer lists in sales presentations, marketing materials and related activities, provided that Riversand obtains Customer’s prior written consent. Riversand will seek Customer's permission prior to disclosure of any further details relating to Customer's experience using the Offering. Riversand may issue a press release describing the general transaction and using Customer’s name, provided that Riversand obtains Customer’s prior written consent to the press release.
e. Third Party Websites. The Offering may allow access to other websites not under the control of Riversand (“Third Party Websites”).Riversand is not responsible for the contents of any linked website, and Customer’s use of any Third Party Websites shall be at Customer’s sole risk and expense. Riversand provides links only as a convenience, and such inclusion of any link does not imply endorsement by Riversand of the linked website or any part of its contents. Customer acknowledges that Third Party Websites may subject Customer to terms and conditions imposed by the Third Party Website owner, and/or fees for use of such Third Party Website.
8. Governing Law and Jurisdiction.
All matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, excluding its conflicts of law provisions, and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco, San Francisco County, California in any dispute arising out of or relating to this Agreement. In the event of a dispute, the parties shall meet and attempt in good faith and with reasonable diligence to commercially resolve the dispute before seeking recourse through litigation or alternative forms of formal dispute resolution. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed or Offerings supplied under it.
9. General Provisions.
a. Integration. This Agreement incorporates by reference the terms of all applicable SLAs, Maintenance and Support Policies, Data Policies and Work Orders as though the same were set forth in their entirety herein. This Agreement, together with such referenced items, constitutes the entire and exclusive understanding between Customer and Riversand with respect to the subject matter referenced herein and supersedes all prior and contemporaneous agreements, understandings, representations, proposals, discussions and communications, whether oral or in writing. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFPs and/or agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice, sale confirmation or other administrative document issued by Customer in connection with this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Riversand to object to such terms, provisions, or conditions. This Agreement shall not be modified, supplemented or amended, or waived, except by a writing referencing this Agreement and signed or expressly accepted by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Work Order. Notwithstanding the foregoing, after execution of this Agreement, and during the electronic provisioning of Customer’s account, Customer will be presented with the requirement to “agree” to a click-through agreement pertaining to “Main Terms of Service” or “Terms of Service” before Customer’s account can be successfully provisioned. Customer acknowledges that any “click-through agreements” found at www.Riversand.com (or other similar sites) shall apply and be incorporated into this Agreement by reference if optional services or features are subsequently ordered or activated. All subsequent agreements between the parties (including, for the avoidance of doubt, any Work Orders) relating to the subject matter of this Agreement shall be subject to the terms and conditions of this Agreement to the exclusion of all other terms and conditions. Should the provisions of any part of this Agreement conflict with those of any other part of this Agreement, the inconsistency shall be resolved by giving precedence in the order indicated as follows: (a) the Operating Policies; : (b) most-recent amendment (if any); (c) this Agreement; and (d) the applicable Work Order.
b. Survival. Any termination or expiration of this Agreement, howsoever brought about, shall not affect or prejudice the provisions hereof pertaining to warranty, indemnity, confidentiality, insurance, disclaimer of consequential damages, limitation of liability, dispute resolution, and governing law, and any provisions which either expressly or by implication are intended to remain in effect following such expiration or termination.
c. Miscellaneous. This Agreement shall inure to benefit of and bind the parties hereto and their respective successors and assigns. Neither party may assign this Agreement without the prior written consent of the other party, except that Riversand may assign without consent to its affiliate or the successor of all or substantially all of Riversand’s business or assets, and any such assignment or purported assignment shall be void. There are no third-party beneficiaries to this Agreement. The status of each party under this Agreement shall be that of an independent contractor. This Agreement is not intended to and does not create any joint venture, partnership, agency, or employment relationship between the parties, nor does it grant either party the authority to bind or contract any obligation in the name of or on the account of the other party or to make any statements, representations, warranties or commitments on behalf of the other party. Each party acknowledges that it is a sophisticated commercial party represented by legal counsel or otherwise familiar with the transactions contemplated by this Agreement, and that it has negotiated this Agreement at arm's length. If any provision is held by a court of competent jurisdiction to be unenforceable or invalid, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right or remedy arising hereunder shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Neither party shall be liable for delay or nonperformance of any obligation (excluding payment obligations) to the extent resulting from any force majeure event, including, without limitation, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism (including cyber terrorism), DDoS and similar attacks, viruses or other malicious software attacks or infections, act of war, civil unrest, criminal acts of third parties, power failure, failure of the Internet or of a public telecommunications company, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Riversand employees), or shortage of materials. The party seeking the benefit of the force majeure event shall use reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible, and any delivery date shall be extended accordingly. The section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way. This Agreement may be executed in counterparts and/or by electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.
This Service Level Agreement is to be used with the Essential™ product and is governed by the terms of the associated Subscription Agreement between Riversand Technologies, Inc. and Customer. Capitalized terms not defined herein shall have the meanings ascribed to them in the Subscription Agreement.
1.1. “Credit Unit” is a representation of a unit of currency, of the same type as that used for payment to Riversand for the applicable Offering.
1.2. “Downtime” means a period of time during the Reference Period in which the Offering is not accessible by Customer (in minutes), less any Excluded Downtime.
1.3. “Excluded Downtime” means a period of time during the Reference Period in which the Offering is not accessible by Customer (in minutes) because of:
1.3.1. a fault or failure of the Internet, of any public telecommunications network, or of hardware, local area networks, or software that is owned or controlled by Customer or a third party;
1.3.2. an intentional shut-down in connection with security procedures or at the direction of Customer;
1.3.3. any Force Majeure event;
1.3.4. Riversand’s inability to deliver resulting from any act or omission of Customer;
1.3.5. 1.3.5. critical data model elements being missing or unavailable due to corrupted data (unless such corruption or missing data is due to Riversand’s fault or negligence); or
1.3.6. Scheduled Downtime.
1.4. “Reference Period” has the meaning provided in Section 2 of this Service Level Agreement.
1.5. “Scheduled Downtime” means the period of time when Riversand schedules routine maintenance or systems upgrades. Riversand shall exercise commercially reasonable efforts to schedule maintenance and system upgrades outside of peak traffic periods. Unless notice is provided, Scheduled Downtime will occur on Saturdays within the twelve hour window between 8:00AM and 8:00PM, United States Central Time Zone.
1.6. 1.6. “System Availability” means the percentage of time during the Reference Period in which the Offering is accessible to Customer substantially in accordance with the terms of this Service Level Agreement, as measured by Riversand’s monitoring system. System Availability shall be calculated in accordance with the following formula:
A% = (R – D) / (R – E) x 100
R is the Reference Period (in minutes);
D is the total Downtime;
E is the total Excluded Downtime; and
A% is the System Availability.
2. Applicability. Subject to the terms of the Subscription Agreement, Riversand warrants that the Offering (as defined in the Subscription Agreement and described in more detail in the Order Form) will have a System Availability of 99.5%, as calculated over a Reference Period of one calendar year (the “Accessibility Warranty”).
3. Remedy.If the Offering fails to meet the Accessibility Warranty, Riversand will issue to Customer’s account the number of Credit Units resulting from application of the credit formula set forth in Section 4 of this Service Level Agreement. Customer may apply the Credit Units towards any future purchases of Riversand Offerings.
4. Calculation. Credit Units shall be calculated as follows: Credit Unit = (1 – System Availability) x subscription fee received by Riversand attributable to the Reference Period.
5. Notification. . In order to obtain Credit Units based on Riversand’s breach of the Availability Warranty, Customer must notify Riversand no later than five (5) days of the event of Downtime for which Customer believes it may be entitled to a Credit Unit. Such notice shall set forth in reasonable detail the duration of the event of Downtime and the circumstances under which Customer was unable to access the Offering. Customer shall be solely responsible for bringing to Riversand’s attention any failure to access the Product.
6. Limitations. EXCEPT FOR THE EXPRESS WARRANTY STATED IN THIS SERVICE LEVEL AGREEMENT, THIS AGREEMENT DOES NOT CREATE ANY OTHER REPRESENTATION OR WARRANTY RELATED TO THE AVAILABILITY, ACCESSIBILITY, OR USABILITY OF THE OFFERING. THE REMEDIES STATED IN THIS SERVICE LEVEL AGREEMENT ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND RIVERSAND’S SOLE LIABILITY, FOR FAILURE OF THE OFFERING’S ACCESSIBILITY, IRRESPECTIVE OF RIVERSAND’S FAULT, NEGLIGENCE, OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY.
This Maintenance and Support Policy shall be used with and governed by the terms of the Subscription Agreement between Riversand Technologies, Inc. and Customer. All capitalized terms not defined in this Maintenance and Support Policy will have the meanings ascribed to them in the Subscription Agreement.
- “Configurations” means tailoring the UI screens for different roles and user, enabling/disabling some core features and modules etc.
- “Incident” refers to an event which is not part of the standard operation of an Offering and which causes or may cause disruption to or a reduction in the quality of services and Customer productivity. Such events are typically System Outages or a loss of functionality.
- “Incident Reporting Channels” means the agreed methods of communicating and registering Incidents with Riversand, as further described in Section 5 of this Maintenance and Support Policy.
- “Response Time” means the time between Customer’s report of an Incident through the Incident Reporting Channels and Riversand’s acknowledgement of the existence of the Incident.
- “Restoration” means the successful application of the Support Services to an Incident, and may be achieved by (a) reinstalling software; (b) application of a tested patch or workaround; (b) identification of an Incident’s cause, where a patch may cause unknown or serious problems in the Offering; (c) modification of the Offering to include new features; (d) the inability to reproduce an Incident despite reasonable efforts; (e) Customer’s agreement that the Incident was not caused by a defect or deficiency in the Offering; and (f) for P4 and P5 incidents, fixes or generation of a solution roadmap.
- “Scheduled Downtime” means the period of time when Riversand provides routine maintenance or systems upgrades. Riversand shall exercise commercially reasonable efforts to schedule maintenance and system upgrades outside of peak traffic periods. Unless notice is provided, Scheduled Downtime will occur on Saturdays on Saturdays within the twelve-hour window between 8:00AM and 8:00PM United States Central Time Zone.
- “Support Services” refers to Riversand’s technical support service obligations in view of the Restoration of Incidents. Riversand reserves the right to subcontract the Support Services upon prior written notice to Customer. The Support Services do not include any education services, Configuration, implementation or professional services. Products such as training and onsite services may be purchased in addition to Support Services, at Riversand’s then-current standard services rates.
2. Offerings Supported This Maintenance and Support Policy covers the Offerings listed in the Order Form.
3. Service and Support Hours (Service Availability) Customer support will be available 24 hours a day, 7 days a week.
4. Performance Monitoring Riversand shall ensure that performance of the Application Services and Platform Services is monitored and the following measures are made available to Customer in accordance with Section 15. Monitoring should include data center monitoring, point to point monitoring and end user monitoring through automated scripts running at an interval of no less than 15 minutes.
5. Support Languages All written communication by both parties, including but not limited to documents, email and tickets shall be in English.
6. Incident Reporting Channels.
- The primary Incident Reporting Channel is the support portal available at: http://www.rmtrack.com/riversand/Security/Login.aspx
- Email: firstname.lastname@example.org
- Australia: +61 283173227 Option 1
- Swiss: +41 445087579 Option 1
- Germany: +49 32214219911 Option 1
- UK: +44 2038072242 Option 1
- USA: +1-713-934-8899 Option 1
- USA Toll Free: +1-888-234-5933 Option 1
Riversand’s obligation to provide Support Services in response to an Incident is subject to Customer’s support liason(s) reporting the Incident via one of the Incident Reporting Channels. Customer will share his own unique Incident reference ID for each Incident reported. Customer expects this reference ID to be included in any Incident communications between the Parties.
7. For Incidents requiring Support Services, Riversand agrees to respond to the Incident, and Restore critical functionality of the Offering, in accordance with the following:
|1||CRITICAL: The Incident stops most of the Business. The issue is occurring in a production environment.||10 minutes||2 Hours|
|2||URGENT: The Incident stops a large part of the Business or Major issues to most of the Business.||30 minutes||8 Hours|
|3||HIGH: One or more users can't follow a key Business process, or a large part of the Business suffers a major issue.||2 hours||24 Hours|
|4||MEDIUM: One or more users suffer a major issue, or a large part of Business suffers minor difficulty.||4 hours||72 Hours|
|5||STANDARD: One or more users suffer a minor difficulty.||8 hours||72 Hours|
8. Riversand will acknowledge reports of Incidents via support tickets submitted through Riversand’s support portal. For each Incident, a unique identifier as well as the Customer’s own Incident reference ID will be communicated to Customer. Riversand will be responsible for Incidents reported to Riversand or detected by Riversand’s own monitoring tools. Each support ticket will be prioritized based on the priority of the support ticket. Following the 60-day stabilization period immediately following Customer’s commercial go-live for the Offering, Riversand will prioritize Incidents as follows:
- P1 (Critical)
- P2 (Urgent)
- P3 (High)
- P4 (Medium)
- P5 (Standard)
|Multiple Business Areas Multiple Users||Single Business Area Multiple Users||Multiple Business Areas Single User||Single Business Area Single User|
|URGENCY||I cannot work||P1||P2||P3||P4|
|I cannot do critical parts of my job||P2||P3||P4||P4|
|I am able to work but it will become critical within 24hrs||P3||P3||P4||P4|
|I am working with minor inconvenience and disruption||P4||P4||P5||P5|
9.Procedure for Maintenance. Riversand shall give at least 48 hours’ advance notice for any Scheduled Downtime. Riversand shall use its best efforts to schedule all downtimes on Saturdays within a twelve-hour maintenance window between 8:00AM and 8:00PM, U.S. Central Time Zone (depending on the production server(s) from which Riversand is providing the Offering). Riversand shall use its best efforts to limit Scheduled Downtime, be it for a major Services release or others, to sixteen (16) hours per month, except in the event of a Force Majeure event or other circumstances beyond Riversand’s reasonable control. Riversand reserves the right to extend or change the times of the maintenance window. Other than in exceptional circumstances (for example, in an emergency response to a security threat), Riversand updates will occur during notified maintenance periods only.
10. Backup and Disaster Recovery. Riversand ensures site backup at a designated frequency in a third-party location and the backup data is stored in geo-replicated sites. Riversand maintains copies of the data across data centers. Once the initial seeding is complete, only incremental changes are sent to the geo-replicated site at a defined frequency.
Riversand will provide details of its disaster recovery procedure and records of last and next planned failover dates. The switchover & recovery process is targeted to take no more than forty-eight (48) hours and the data on the two systems is designed to not be out-of-synch by more than forty-eight (48) hours. Riversand uses automation tools to create disaster recovery plans. Recovery plans can orchestrate recovery of the virtual machines protected for replication to a different data center. This methodology helps in making the recovery consistently accurate, repeatable, and automated. These automated plans can be tested without disrupting the services at the primary location. Riversand typically runs these recovery plans annually to validate the recovery service.