1.Subscription Service. Subject to the terms and conditions of this Agreement and during the Initial Contract Term (or any Renewal Term) (the “Term”), Riversand shall make the Products available to Customer to be used by Customer’s and its Affiliates’ Users solely for the internal business operations of Customer or such Affiliate (as the case may be). The terms of this Agreement shall also apply to updates, and upgrades subsequently provided by Riversand to Customer for the Product. Riversand shall host the Product and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Product from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Product and customers’ use of the Product.
2. Estimates/Order Forms. The Service shall be ordered by Customer or its Affiliates pursuant to Estimates/Order Forms. Each Estimate/Order Form shall include at a minimum a listing ofthe Product and any Support Services and/or Professional Services being ordered and the associated fees. Except as otherwise provided on the Estimate/Order Form or this Agreement, each Estimate/Order Form is non-cancellable and shall be subject to the terms and conditions of this Agreement. For any order by Customer’s Affiliate, the term “Customer” shall refer to Customer and such Affiliate(s).
3. Restrictions. Customer shall only use the Products in compliance with the limitation set forth in the Order Form (e.g., User acounts).
4. Term, Fee, Payment & Taxes
- Term. The term of this Agreement shall commence on the Effective Date and shall continue for the length of time referenced in all Estimate/Order Forms for the Products (the “Term”). The initial subscription term of the Product procured by Customer shall continue for the term specified in the applicable Estimate/Order Form. Thereafter, this Agreement shall be renewed and the subscription term of the applicable Service shall be renewed as set forth in subsequent Estimate/Order Forms (each successive renewal term, a “Renewal Term”). Riversand shall provide Customer with a general renewal reminder and a renewal Estimate/Order Form in advance of the end of the thencurrent term. If Customer has not signed and delivered the Estimate/Order Form to Riversand regarding an upcoming Renewal Term prior to the expiration of the then current term, then the subscription term for the applicable Service and Users shall be automatically renewed for successive Renewal Terms of one (1) year each, unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration.
- Fees and Payment. All fees payable are due within 30 days from the invoice date unless otherwise specified in Customer Estimate/Order Forms. All fees are non-refundable, except as otherwise explicitly stated in the applicable Estimate/Order Form or this Agreement. The fees and the term of use for additional Users and other items procured during an existing subscription term will co-terminate with and be prorated through the end date of the subscription term for the applicable Service. Pricing for subsequent renewal Estimate/Order Forms shall be set at then current Riversand pricing, unless otherwise agreed to by the parties. If the fees for a feature or functionality of the Product are based on usage of the Product, then Riversand may access and use Customer Data as reasonably necessary to determine the fees for the applicable feature or functionality.
- . Taxes. Riversand fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Riversand's net income. 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. Any notice required under this Agreement shall be provided to the other party in writing. If Customer has a legal dispute with Riversand or if Customer wishes to provide a notice under the Indemnification Section of this Agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: Riversand Technologies, Inc., 2929 Briarpark Drive, Suite 200, Houston, Texas 77042, Attention: General Counsel, Legal Department.
- Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION BELOW
- Limitations on Liability. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE.
- Acknowledgement; Exceptions. 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. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A BREACH OF SECTION 3 OF THIS AGREEMENT; OR (C) EITHER PARTY’S DEFENSE AND INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN THIS SECTION (INDEMNIFICATION). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
7. Associated Agreements Incorporated. The terms and conditions of the following associated agreements are incorporated into this Agreement as though copied verbatim herein; Service Level Agreement; Support Agreement and Data Policy Agreement.
8. General Provisions.
- Integration. This Agreement incorporates by reference all terms (as applicable), Exhibits and Estimate/Order Forms, and this Agreement, together with such referenced items, constitute the entire understanding between Customer and Riversand and are intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to 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. The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Estimate/Order Form. Notwithstanding the above, after execution of this Agreement, and during the electronic provisioning of Customer’s Riversand® Essential™ Subscription Agreement (Rev 3.2019)™ Confidential Page 3 of 3 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” for NetSuite Applications before Customer’s account can be successfully provisioned. Customer acknowledges that any “click-through agreements” found at www.Rivesand.com (or other similar sites) shall apply if optional services or features are subsequently ordered or activated.
- Other General Provisions. This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except that Riversand may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Riversand reserves the right to name Customer as a user of the Product. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party shall be liable for loss, delay, nonperformance (including failure to meet the service level commitment but excluding payment obligations) to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Riversand employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, 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 facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.
1.1. “Inaccessibility Period” means the period of time that the Solution is not accessible by Customer (measured in minutes), provided however that Inaccessibility Period shall not include any period during which the Solution is not accessible because of:
1.1.1. General failure of the Internet (mere micro-outages where inaccessibility lasts less than fifteen (15) minutes from Internet traffic or disruption);
1.1.2. An intentional shut-down in response to a security incident or other disruptions from routine vulnerability testing or security testing;
1.1.3. Intentional shut-down at the direction of Customer;
1.1.4. Equipment failure or software failure under the control of a third party;
1.1.5. Any Force Majeure event;
1.1.6. User errors that causes critical data model elements to be missing or unavailable;
1.1.7. Loading of corrupted data that causes critical data model elements to be missing or unavailable; or
1.1.8. During Scheduled Downtime.
1.2. “Credit Unit”. A Credit Unit is a representation of a unit of currency, in the same currency as Customer paid Riversand for the applicable Solution in United States Dollars.
1.3. “Annualized Period” means a twelve month period commencing on the anniversary date of Customer’s subscription to the applicable Solution.
1.4. “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 from Saturday, 8:00AM to Saturday, 8:00PM United States Central time zone. Riversand reserves the right to extend or change the times of the Maintenance Window.
2. Applicability.Riversand warrants that the Product (identified in the MSA and Order Form) will be accessible to Customer on the terms of this Service Level Agreement. Riversand warrants that the Solution will be accessible 99.5% percent of the time, seven days a week, and twenty-four hours per day, as calculated over a calendar year (the “Accessibility Warranty”).
3. Remedy.If the Solution fails to be accessible meet the Accessibility Warranty, Riversand will issue to Customer’s account the number Credit Units resulting from application of the credit formula. Customer may use the Credit Units towards any future purchases of Riversand Products.
4. Calculation.A Credit Unit is calculated as follows: Credit Unit = Inaccessibility Period (in hours) ÷ 8,760 hours X Annual Subscription Fee actually paid.
5. Notification. Customer shall be solely responsible for maintaining adequate controls over Customer’s Data transmissions to the Solution, for monitoring such transmissions, and for bringing to Riversand’s attention any failure to access the Solution. Customer shall notify Riversand within five (5) days of any Inaccessibility Period or claim for a Credit Unit.
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 SOLUTION. The remedies stated in this Service Level Agreement are Customer’s sole and exclusive remedies, and Riversand’s sole liability, for failure of the Solution’s accessibility.
a. “Business Day” means any regular business working day.
b. “Business Hours” means the regular operating hours (8am- 6pm) for Customer business according to the country’s time zone. If used in connection with an Incident ticket, then “Business Hours” refers to Business hours from Customer business unit where incident first identified.
c. “Configurations” means tailoring the UI screens for different roles and user, enabling/disabling some core features and modules etc.
d. “Customizations” means building new UI Screens, External Data Connectors which typically involve programming.
e. “Enhancements” means all Software changes, including new releases, new versions, product improvements, system modifications, updates, upgrades, patches, and field modifications.
f. “Fix(ed)” means the repair or replacement of object or executable code versions of product to remedy an Error.
g. "HotFix Roadmap" means the published schedule of HotFix releases defined by Riversand. The HotFix will contain fixes to the software as prioritized by Riversand. Riversand currently releases a HotFix once every 2 weeks, which is optional for clients to deploy. Issues get slotted into the HotFix based on priorities across our current customer base.
h. “Incident“ refers to an event which is not part of the standard operation of a service and which causes or may cause disruption to or a reduction in the quality of services and customer productivity. This is typically a System Outage or a loss of functionality.
i. “Incident Reporting Channels” refers to the agreed methods of communicating and registering incidents with Riversand.
j. “Monitoring Tools” refers to tools setup by Riversand to monitor the stability, availability, performance of the Solution specified in this agreement.
k. “Next Update Intervals” mean the time defined by when incident statuses need to be updated by Riversand in the incident tickets, so that Customer’s Support Liaison can follow progress of the reported incident.
l. “Response Time” is the time between the reporting of an incident and an acknowledgement of the existence of the Incident by Riversand through the agreed Incident Reporting Channels.
m. “Support Services” refers to Riversand’s obligation in view of the resolution of Incidents. Support does not include any Education Services, Configuration, Implementation or Professional Services. Products such as training and/or onsite services may be purchased in addition to Support, at the then-current standard services rates.
n. “Service Review Call” refers to a monthly meeting between both parties to review Key Performance indicators and Service Levels as described here.
o. “Scheduled Downtime” means a planned period during which the Service is not available for use, as communicated to Customer at least two (2) Business Days in advance of such an event, or in a case of Microsoft security patches to be installed at least eight (8) Business Hours in advance of such event. Any Downtime not communicated within the period set forth above is classified as “Unplanned” or “Unscheduled”. Scheduled Downtime shall not exceed six hours per calendar month.
p. “Workaround” means a change in the followed procedures or data to avoid error without substantially impairing use of the OnDemand Software solution.
2. Products Supported. Riversand Maintenance and Support Agreement covers the Products listed in the Order Form.
3. Service and Support Hours (Service Availability) Hours of availability for customer support will vary depending upon the service involved and the level of support chosen by Customer in the Order Form. In the absence of such election customer support will be 8:00 am to 5:00 pm U.S. Central Standard Time Monday through Friday.
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. Riversand will provide the results monthly for review as part of the monthly Service Review Call described later in this document.
5. Support Languages All written communication by both parties, including but not limited to documents, email and tickets must be in at minimum in the following language: English
6. Support Contacts
- Support Center 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
- The primary Incident Reporting channel is a support portal available at: http://www.rmtrack.com/riversand/Security/Login.aspx
- In case the support portal is unavailable, Incidents will be reported via phone/ email as indicated above. For Customer to receive any Support Services, the incident concerned needs to be reported by Customer’s Support Liaisons, via one of the mentioned Incident Reporting Channels. Customer will at this time share his own unique incident reference ID for each incident reported. Customer expects this reference ID to be included in any incident communications between parties.
7. Incident acknowledgment Priority Matrix. Incident reporting will be acknowledged by Riversand via support tickets, available for consultation 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 handling incidents reported to Riversand or detected by Riversand’s own monitoring tools. Each support ticket will be prioritized based on the priority and impact of the incident.
8. Incident Response Times. Customer standard target response times are as follows:
9. Incident Response Times. Customer standard target response times are as follows: