To become a customer of the Services (as defined below), you must accept this Customer Agreement (this “Agreement”). When you evidence your acceptance, either by executing an initial Order Form or otherwise first accessing and using the Services on a non-trial basis (either directly or through a Reseller), this Agreement will constitute a binding agreement between Rainmaker Associates, Inc. (“Rainmaker”) and the customer entity identified on the signature page of the applicable Order Form (“Customer”) regarding Customer’s access to and use of the Service, effective on the date of Customer’s acceptance. Rainmaker and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The individual who accepts this Agreement on Customer’s behalf represents that they have the authority to bind Customer.
WHEREAS, Rainmaker makes available to its customers certain hosted services via the Internet; and
WHEREAS, Customer desires to be purchase a subscription to access and use such hosted services;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, Rainmaker and Customer do hereby respectively agree as follows:
“Customer Data” means any data that is input into the Services by Customer and/or its affiliates and each User while accessing and using the features and functions of the Services.
“Deliverable” means developments, work product and deliverables resulting from any Additional Services (as defined in Section 2(c)) performed by Rainmaker under this Agreement and the applicable Statement of Work.
“Documentation” means the user guide for the Services made available by Rainmaker as may be updated by Rainmaker from time to time.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents governing the purchases made by Customer hereunder that are executed by an authorized representative of each Party from time to time. Fully executed Order Forms shall be deemed incorporated into this Agreement by this reference.
“Services” means Rainmaker’s online, Web-based application(s) and/or platform(s) identified in one or more Order Form(s) to which Customer subscribes pursuant to the terms of this Agreement and an Order Form.
“Third-Party Offerings” means third party data and/or services that may be provided by Rainmaker to Customer in accordance with Section 4 below but that are not included in the Fees for the Services as set forth in this Agreement or in one or more Order Form(s).
“Users” means individuals who are authorized by Customer and/or its affiliates, to use the Services, for whom subscriptions to a Service have been purchased, and who have unique user identifications and passwords that shall be reassignable as stated below and linked to Customer’s Saleforce log-in. Users may include but are not limited to Customer’s employees, consultants, contractors and agents.
- Provision of Services. Rainmaker shall make the Services available to Customer pursuant to this Agreement and the relevant Order Forms during the applicable subscription term. Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Rainmaker regarding future functionality or features. Customer understands that this Agreement grants certain rights of access only, and that nothing in this Agreement may be interpreted to require delivery of a copy of any portion of the Services to Customer or installation thereof upon any computers or systems under Customer’s control.
- User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing charged by Rainmaker for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are purchased, and (iii) the additional User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User; provided that Customer may reassign a subscription to new Users replacing former Users who no longer require ongoing use of or access to the Services.
- Additional Services. From time to time, Customer may request that Rainmaker perform certain additional services that are related to the Services but beyond the scope of this Agreement (the “Additional Services”). Upon Customer’s request, Rainmaker will prepare a Statement of Work that will include an estimate of time and fees required to perform such Additional Services. In order to be valid and binding on the Parties, all Statements of Work must be executed by an authorized representative of each Party and will, to the extent applicable, contain: (a) a description of the Additional Services to be performed; (b) any applicable, milestones, Deliverables , and timelines for delivery; (c) applicable charges and payment terms; and (d) any other terms applicable to such Additional Services. Each fully executed Statement of Work shall form a part of this Agreement and be subject to the terms and conditions set forth herein. Unless otherwise expressly agreed in a Statement of Work, if the terms of this Agreement conflict with the terms of any Statement of Work, the terms of this Agreement will prevail.
- Rainmaker’s Responsibilities. Rainmaker shall: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (y) planned downtime, or (z) any unavailability caused by circumstances beyond Rainmaker’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, and (ii) provide the Services in accordance with applicable laws and government regulations.
- Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of all Customer Data and of the means by which Customer acquired the Customer Data, (iii) prevent the unauthorized access to or use of the Services, and notify Rainmaker promptly of any such unauthorized access or use of which Customer becomes aware, and (iv) use the Services only in accordance with the Documentation and applicable laws and government regulations. Customer shall not make the Services available to anyone other than Users.
- Usage Limitations. The Services may be subject to limitations, including limits on disk storage space and on the number of calls Customer is permitted to make against Rainmaker’s application programming interface.
4. THIRD-PARTY OFFERINGS. Rainmaker may provide access to certain Third-Party Offerings that require Customer to purchase a license to use such Third Party Offerings. In the event that such license is required, any such fee shall be identified in the applicable Order Form pursuant to which such Third Party Offering is provided by Rainmaker to Customer. Rainmaker does not warrant any such Third-Party Offerings, except as expressly stated in the applicable Order Form.
5. FEES AND PAYMENT
- User Fees. Customer shall pay all fees specified in all Order Forms and Statement(s) of Work, and shall reimburse Rainmaker, at Rainmaker’s actual cost and without mark-up, for Rainmaker’s actual reasonable travel expenses that are incurred as a result of Rainmaker’s performance hereunder. Except as otherwise specified herein or in an Order Form or Statement of Work, (i) fees are quoted and payable in United States dollars, (ii) fees are based on Services purchased and not actual usage, (iii) all fees are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form..
- Payment. Rainmaker will submit an invoice for all Services and Additional Services purchased by Customer as set forth in one or more Order Form(s) or Statement(s) of Work. Unless otherwise agreed in an Order Form or Statement of Work, all Rainmaker invoices are payable no later than thirty (30) days from the date of the invoice. All fees payable under this Agreement shall be made without recoupment or set-off.
- Overdue Charges; Suspension of Service; Acceleration; Collections Fees. If any fees are not received from Customer by the due date, then at Rainmaker’s discretion, (a) such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Rainmaker may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5(b) above. If an amount owing by Customer under a particular Order Form is thirty (30) or more days overdue, Rainmaker may, without limiting Rainmaker’s other rights and remedies, accelerate Customer’s unpaid fee obligations for that Order Form so that all such obligations under that Order Form become immediately due and payable, and suspend provision of the Services pertaining to that Order Form to Customer until such amounts are paid in full. Customer shall pay on demand all of Rainmaker’s reasonable attorney fees and other costs incurred by Rainmaker to collect any fees or charges due Rainmaker under this Agreement following Customer’s breach of this Section 6. In addition, to the extent that Customer does not pay Rainmaker all fees that are due and owing under this Agreement as set forth in this Section 5, Rainmaker may reverse any discounts offered to Customer in this Agreement, and Customer agrees to pay Rainmaker full list price for all Services and Deliverables provided by Rainmaker to Customer hereunder.
- Payment Disputes. Rainmaker shall not exercise Rainmaker’s rights under Section 5(c) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Unless otherwise stated, Rainmaker’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes“). Except for taxes assessable against Rainmaker based on Rainmaker’s income, Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Rainmaker has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer in accordance with Section 5(b) above, unless Customer provides Rainmaker with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Audit. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles with respect to matters necessary to ensure Customer’s compliance with this Agreement. Rainmaker will have the right, at its own expense and upon reasonable prior notice, periodically to inspect and audit the records of Customer with respect to matters covered by this Agreement. If such inspection and audit reveals that Customer has underpaid Rainmaker with respect to any amounts due and payable during the period to which such inspection and audit relate, Customer shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest in accordance with Section 5(c). Such inspection and audit rights shall extend throughout the term of this Agreement.
6. PROPRIETARY RIGHTS
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, Rainmaker, for itself and on behalf of its licensors, reserves all rights in the Services and Deliverables that are not expressly granted to Customer in this Agreement, and Customer acknowledges and agrees that, except as specifically set forth in this Agreement, Rainmaker owns all rights, title and interest in and to the Services and Deliverables. All rights, title and interest in and to any and all improvements, modifications, derivative works and innovations of, to and/or involving the Services and Deliverables will be retained in full and owned by Rainmaker, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users. Customer agrees not to challenge, directly or indirectly, the right, title, and interest of Rainmaker in and to the Services or Deliverables, and further agrees not to directly or indirectly, register, apply for registration, or attempt to acquire any legal protection for any of the Services and Deliverables.
- Restrictions. Customer shall not (i) permit any third party to access the Services and/or Deliverables except as permitted herein or in an Order Form, (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or copy the Services and/or Deliverables, (iii) remove, alter or obscure any proprietary notice, labels or marks on any component or portion of the Services and/or Deliverables, or (iv) access the Services and/or Deliverables in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services and/or Deliverables; (v) market, sell, resell, rent or lease the Services and/or Deliverables, (vi) use the Services and/or Deliverables to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (vii) use the Services and/or Deliverables to store or transmit Malicious Code, (viii) interfere with or disrupt the integrity or performance of the Services, Deliverables and/or third-party data contained therein, (ix) use the Services and/or Deliverables for the benefit of any third party, or (x) attempt to gain unauthorized access to the Services and/or Deliverables, or their related systems or networks..
- Ownership of Customer Data. As between Rainmaker and Customer, Customer owns all rights, title and interest in and to all Customer Data. Customer hereby grants to Rainmaker during the Term a non-exclusive, non-transferable right and license to use, reproduce and prepare derivative works of the Customer Data solely in connection with the provision of the Services by Rainmaker. Notwithstanding anything to the contrary in this Agreement, Rainmaker may: (i) collect aggregated statistical data from Customer’s use of the Services (the “Aggregate Statistics”); and (b) use Aggregate Statistics internally and disclose Aggregate Statistics to third parties; provided that Aggregate Statistics shall be in aggregate form only and will not contain any information specific or personally identifiable to Customer or any Users.
- Federal Government End Use Provisions. Rainmaker provides the Services and Deliverables, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services and all Deliverables include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Rainmaker to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party“) to the other Party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include the Customer Data; Rainmaker’s Confidential Information shall include the Services (including any data models, structures, non-customer specific data and aggregated statistical data contained therein), the Deliverables and the Documentation; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, research, development, services, customers, customer lists, designs, drawings, technology and technical information, products, product plans and designs, software, developments, inventions, processes, formulas, finances, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information.
- Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein and for whom the Receiving Party remains fully liable.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- Injunctive Relief. Each Party acknowledges that the extent of damages in the event of any threatened or actual breach of this Section 7 would be difficult or impossible to ascertain and that there will be available no adequate remedy at law in the event of any such breach. Each Party therefore agrees that in the event it breaches any provision of this Agreement, the other Party will be entitled to specific performance and injunctive or other equitable relief, in addition to any other relief to which it may be entitled at law or in equity. Any such relief shall be in addition to and not in lieu of any appropriate relief in the form of monetary damages.
8. WARRANTIES AND DISCLAIMERS
- Rainmaker’s Warranties. Rainmaker warrants that (i) the Services shall perform materially in accordance with the Documentation; (ii) the functionality of the Services will not be materially decreased during a subscription term; (iii) Rainmaker shall not use Customer Data except as permitted herein; and (iv) there is no action, suit, investigation, claim, arbitration or litigation pending or, to its knowledge, threatened against, affecting, or involving such party at law or in equity or before any court, arbitrator, or governmental authority that is reasonably likely to result in a material adverse effect on the party’s ability to perform its obligations under this Agreement. For any breach of these warranties, Customer’s exclusive remedy shall be as provided in Section 11(c) and Section 11(d) below.
- Customer Warranties. Customer represents, warrants and covenants that: (i) it owns or otherwise has sufficient rights, including all “artist’s rights” and “moral rights,” to grant Rainmaker access to and use of all Customer Data in accordance with the terms of this Agreement; (ii) with respect to any and all Customer Data or other materials provided by Customer to Rainmaker, that Customer has all necessary rights and authorizations required in order for Rainmaker to provide the Services as well as any and all Additional Services described in one or more Statements of Work; (iii) there is no action, suit, investigation, claim, arbitration or litigation pending or, to its knowledge, threatened against, affecting, or involving such party at law or in equity or before any court, arbitrator, or governmental authority that is reasonably likely to result in a material adverse effect on the party’s ability to perform its obligations under this Agreement; and (iv) it will not provide access to the Services to any person or entity other than Users, and that it will ensure that each User will access and use the Services strictly in accordance with the terms of this Agreement.
- Mutual Warranties. Each Party represents and warrants that (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) its execution, delivery and performance of this Agreement will not conflict with or result in a breach or other violation of any agreement or other third party obligation by which it is bound; (iii) when executed and delivered, this Agreement will constitute its legal, valid and binding obligation enforceable against it in accordance with its terms; (iv) it will comply with all applicable laws in its performance of this Agreement; and (v) it will not transmit to the other Party any Malicious Code (except for Malicious Code previously transmitted to the warranting Party by the other Party).
- Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, RAINMAKER MAKES NO, AND COMPANY HEREBY WAIVES AND DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE SERVICES, ADDITIONAL SERVICES AND DELIVERABLES CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED SERVICE, OR ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FURTHERMORE, THE SERVICES, ADDITIONAL SERVICES AND DELIVERABLES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND RAINMAKER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Indemnification by Rainmaker. Rainmaker shall indemnify, defend and hold harmless Customer against any claim, demand, suit, or proceeding (“Claim“) made or brought against Customer by a third party (i) alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party; (ii) for Rainmaker’s use of Customer Data except as permitted herein; and (iii) for Rainmakers violation of applicable laws, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim. The preceding sentences is contingent on Customer (a) promptly giving Rainmaker written notice of the Claim; (b) giving Rainmaker sole control of the defense and settlement of the Claim (provided that Rainmaker may not settle any Claim unless the settlement unconditionally release Customer of all liability); and (c) providing to Rainmaker all reasonable assistance, at Rainmaker’s expense. Rainmaker shall have no liability under this Agreement with respect to any Claim based upon: (i) combination or use of the Services with equipment, products, systems, software, materials or processes not furnished by Rainmaker if, absent such combination, no infringement would exist; (ii) use of the Services in a manner inconsistent with the Documentation; (iii) use of the Services which use breaches this Agreement. If Customer’s use of the Services hereunder is, or in Rainmaker’s opinion is likely to be, enjoined due to a Claim, then Rainmaker may: (i) procure for Customer the right to continue using such Services under the terms of this Agreement; (ii) replace or modify the applicable Services so that it is non-infringing and substantially equivalent in function to the enjoined Services; or (iii) terminate Customer’s subscription to access and use the Services and refund any unused, prepaid fees covering the remainder of the Term of all subscriptions after the effective date of such termination.
- Indemnification by Customer. Customer shall indemnity, defend and hold harmless Rainmaker against any Claim made or brought against Rainmaker by a third party: (i) alleging that the Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; (ii) for Customer’s use of Services and/or Deliverables except as permitted herein; and (iii) for Customer’s violation of applicable laws,, and shall indemnify Rainmaker for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Rainmaker in connection with any such Claim; provided, that Rainmaker (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release Rainmaker of all liability); and (c) provide to Customer all reasonable assistance, at Rainmaker’s expense.
10. LIMITATION OF LIABILITY. EXCEPT FOR AMOUNTS TO BE PAID PURSUANT TO SECTION 9 OR DAMAGES ARISING FROM A BREACH OF SECTION 7, NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT. EXCEPT FOR AMOUNTS TO BE PAID PURSUANT TO SECTION 9 OR DAMAGES ARISING FROM A BREACH OF SECTION 7, THE AGGREGATE LIABILITY OF RAINMAKER AND ITS AFFILIATES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (a) TWENTY FIVE THOUSAND DOLLARS (US$25,000), OR (b) THE AGGREGATE AMOUNT PAID BY COMPANY TO RAINMAKER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A CLIAM ARISES.
11. TERM AND TERMINATION
- Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
- Term of Purchased User Subscriptions. User subscriptions purchased by Customer commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein (the “ Term”). All User subscriptions shall automatically expire on the date (or time period) set forth on the Order Form. The per-unit pricing during any Renewal Term shall be the same as that during the prior term unless Rainmaker provides Customer written notice of a pricing increase at least 60 days prior to the expiration of the Term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% over the pricing for the relevant Services in the Term unless the pricing in the relevant Order Form is detailed as being as promotional or one-time.
- Termination for Cause. A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Return of Customer Data. Upon request by Customer made within 30 days after the effective date of expiration or termination of a Services subscription, and subject to Customer’s payment of all fees due and owing under this Agreement, Rainmaker will make available to Customer for download all Customer Data. After such 30-day period, Rainmaker shall have no obligation to maintain or provide the Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in Rainmaker’s systems or otherwise in Rainmaker’s possession or under Rainmaker’s control.
- Effect of Termination. Termination of this Agreement shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement to survive termination. Upon any termination of this Agreement, each Party shall (i) immediately discontinue all access to and use of the other Party’s Confidential Information (and, in Customer’s case, the Services, Additional Services); (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and remaining payable hereunder, provided that, in no event shall any termination relieve Customer of the obligation to pay any fees payable to Rainmaker for the period prior to the effective date of termination. Termination of this Agreement, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
- Surviving Provisions. Sections 5, 6, 7, 8(d), 9, 10, 11(d) through (f), 12, and 13 shall survive any termination or expiration of this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
- Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; or (c) by certified or registered mail, return receipt requested, upon verification of receipt. Notices shall be sent to the principal officers of each respective Party. Either Party may designate a different address by providing written notice to the other Party.
- Governing Law and Jurisdiction. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the Commonwealth of Virginia, as such laws are applied to agreements entered into and to be performed entirely within Virginia between Virginia residents. Each of the Parties irrevocably consents and submits to the exclusive personal jurisdiction of the state and federal courts located in the Commonwealth of Virginia for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Virginia, such personal jurisdiction shall be nonexclusive. Both Parties waive any right to assert the doctrine of forum non conveniens or otherwise object to the jurisdiction or venue of such courts. The Parties also agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by the Commonwealth of Virginia or any other state in any form. Application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
- Relationship of the Parties. The Parties will perform hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant between the Parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, and the Parties acknowledge that this Agreement is intended solely for the benefit of the Parties, their successors and permitted assigns, and nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their permitted successors and assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Force Majeure. Rainmaker shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Rainmaker. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
- Waiver and Cumulative Remedies; Severability. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. Neither Party will have the right to assign this Agreement without the written consent of the other Party; provided, however, that either party will have the right to assign this Agreement to an affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets of the business to which this Agreement relates. Any assignment in violation of the foregoing provision shall be void and of no effect, and a Party’s sole remedy for any purported assignment by the other Party in breach of this paragraph shall be, at the non-assigning Party’s election, termination of this Agreement upon written notice to the assigning Party. In the event of such a termination, Rainmaker shall refund to Customer any prepaid and unused fees covering the remainder of the Term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Headings; Contract Interpretation. The captions to the Sections of this Agreement are not a part of this Agreement but are merely guides or labels to assist in locating and reading the Sections hereof. The terms “this Agreement,” “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or other portion hereof. Except as expressly provided otherwise, references herein to “days” are to calendar days. Any use of the term “including” in this Agreement shall be construed as if followed by the phrase “without limitation.”
- Entire Agreement; Amendments. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Rainmaker reserves the right to modify this Agreement at any time and in its sole discretion. Rainmaker will notify Customer of any changes to this Agreement by: (i) posting an updated version of to the Service; (ii) emailing a copy of the updated version of this Agreement to Customer at the email address associated with Customer’s account; or (iii) sending Customer a copy of the updated version through Customer’s account, or otherwise notifying Customer when Customer is logged into its account. Customer should regularly review the Service, Customer’s account and the email associated with Customer’s account for any such notices or messages, as Customer’s or its Authorized Users’ continued use of the Service after any such changes were so posted or sent to Customer (as applicable) constitutes Customer’s agreement to such changes. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. However, unless otherwise expressly agreed in an Order Form, if the terms of this Agreement conflict with the terms of any Order Form, the terms of this Agreement will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.