Updated June 12, 2017
These Terms and Conditions govern each Order Form entered into by Steton Technology Group, Inc. dba RizePoint (“RizePoint”) and the Subscriber identified in an Order Form. By signing an Order Form referencing these Terms and Conditions, the parties agree to these Terms and Conditions. From time to time, RizePoint may modify these Terms and Conditions. Unless otherwise specified by RizePoint, changes become effective for existing subscriptions upon renewal of the then-current subscription term. RizePoint will use reasonable efforts to notify Subscriber of the changes via email or other means. Continued use of the Service during the renewal subscription term will constitute Subscriber’s acceptance of the version of the agreement in effect at the time the renewal subscription term begins.
- “Documentation”refers to user manuals and any other written and graphical content provided by RizePoint which sets out a description of the Service and the user instructions for the Service.
- “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between RizePoint and Subscriber, including any addenda and supplements thereto.
- “Service” refers to RizePoint’s hosted field auditing and inspection application, including updates as described in Section 2.5 of the RizePoint Support and Service Level Agreement found at http://www.RizePoint.com/ssla.
- “SSLA” refers to the RizePoint Support and Service Level Agreement found at http://www.RizePoint.com/ssla.
- “Software” refers to RizePoint’s proprietary software and updates provided to Subscriber.
- “Subscriber Data” refers to data input or collected through the Service by or from Subscriber, including, as applicable, information about Subscriber’s contracted suppliers, vendors, and distributors, Subscriber’s customers, audit input data, audit forms and templates developed by Subscriber, audit results, scoring tables, and Subscriber’s policies and procedures, all of which shall be considered Confidential Information.
- “Search-Driven Analytics Data” refers to Subscriber Data input or collected and then uploaded to RizePoint’s Search-Driven Analytics platform/module.
- “Force Majeure Event” means fire, flood, casualty, act of God, terrorist acts, acts of the public enemy, strikes, lockouts and other similar labor actions, riots, or any other extraordinary event occurring at or directly affecting any Party that renders such Party’s performance under this Agreement impossible or not reasonably practicable; but, in each case, only if such event is not directly caused by or attributable to the negligence or intentional misconduct of such Party, or the breach of such Party’s obligations under this Agreement.
Subject to all the terms and conditions set forth herein, RizePoint grants Subscriber a non-exclusive, non-transferable license to use and access the Service as set forth in the applicable Order Form, during the Contract Term.
3. SERVICE AND PAYMENT.
- Service. RizePoint agrees to make the Service available, as Availability is defined in the SSLA, to Subscriber during the Contract Term.
- Payment. Subscriber will be invoiced for the first year’s costs on the contract Effective Date. Recurring costs will be invoiced annually thereafter. All payments are due Net 30 days from date of invoice. Non-payment of any Order Form or project may result in disruption of Service.
- Taxes. Subscriber will pay the appropriate governmental agency (or reimburse RizePoint) any taxes or assessments imposed in connection with the fees charged, including, but not limited to, sales, use VAT, excise, customs duties and other similar taxes (other than taxes based on RizePoint’s net income or property) to the extent that Subscriber is not exempt from such taxes or fees. RizePoint will collect all such taxes and fees unless Subscriber provides RizePoint with proof of exemption.
- Late Fee. Past due payments are subject to a five percent (5%) late fee each month. RizePoint reserves the right to suspend the use of the Service until RizePoint has received payment in full.
- Price Increase. RizePoint reserves the right to increase prices according to payment terms set forth in the accompanying Order Form.
4. TERM AND TERMINATION.
This agreement shall be effective for the Contract Term identified in the Order Form (the “Initial Period”
), unless terminated sooner by either party as specifically authorized herein. Either party may terminate this agreement for material breach, by written notice, effective in thirty (30) days, unless the other party cures the breach within the thirty (30) days. Upon termination by Subscriber for an uncured material breach, RizePoint will refund any pre-paid and unused fees. Subscriber may also terminate for convenience upon thirty (30) days’ advance written notice to RizePoint, but such termination will not change Subscriber’s payment obligations under any Order Form, and no refunds will be given.
- Effects of Termination. Upon termination, Subscriber shall cease all use of the Service. RizePoint will allow Subscriber up to ninety (90) days after termination to access and download and/or otherwise access and retrieve audit configuration data, audit results, and Corrective Action Management. RizePoint shall thereafter destroy any Subscriber Data in its possession or control. Subscriber and RizePoint agree to provide timely written certification to the other party, if requested, of full compliance with the requirements of this subsection.
- Survival. The following provisions will survive termination of this agreement for any reason: (i) any obligation of Subscriber to pay for services rendered before termination; (ii) all duties and obligations of the parties with respect to intellectual property rights under this agreement (Section 6); (iii) the provisions set forth in Warranties (Section 8), Limitation of Liability (Section 9), and Confidentiality (Section 10).
5. USE OF SERVICE; RESTRICTIONS ON USE.
- Subscriber shall use the Service only for the Subscriber’s field inspection and auditing activities that are limited to gathering, creating, manipulating, analyzing, and viewing Subscriber Data and reports. RizePoint acknowledges and agrees that Subscriber will share reports with Subscriber’s contracted suppliers, vendors, and distributors, and with Subscriber’s customers.
- If Subscriber utilizes Search-Driven Analytics, Subscriber acknowledges Search-Driven Analytics Data will be capped at three (3) years. At the beginning of the fourth (4th) year of Search-Driven Analytics, the oldest year will be deleted from the Search-Driven Analytics module. Subscriber will still retain information within the RizePoint Service, just not within the Search-Driven Analytics platform/module.
- Subscriber is solely responsible for the accuracy, quality and legality of Subscriber Data and the means by which it acquires such data.
- Subscriber shall not use the Service to store or transmit any data or material in violation of third-party privacy rights, or to store or transmit any infringing, libelous, or otherwise unlawful or tortious material.
- Subscriber shall not rent, lease, license, assign, transfer, network, reproduce, or timeshare the Service or any of Subscriber’s rights, duties, or obligations under this agreement, nor cause or permit any person or entity to do the same. Any attempt by Subscriber to transfer any of Subscriber’s rights, duties, or obligations under this Agreement shall be void.
- Subscriber shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and will notify RizePoint promptly of any unauthorized access or use of the Service.
- Subscriber shall not cause or permit the Software to be reverse engineered. Subscriber may not decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software or create derivative works from the Software. Subscriber shall not evaluate or use, or facilitate the evaluation or use of the Software for the purpose of competing with RizePoint.
- Subscriber shall use the Service only in accordance with the Documentation and applicable law.
- Subscriber shall not knowingly use, or knowingly cause or permit to be used, the Service in any manner that infringes RizePoint’s rights in RizePoint’s intellectual property or other rights of RizePoint or any other person or entity.
6. PROPRIETARY RIGHTS.
- RizePoint’s products are protected by applicable copyright, trade secret, industrial and other intellectual property laws. All rights not expressly granted are reserved by RizePoint. RizePoint or its licensors retains all right, title and interest to the Software, the Service, and all related intellectual property and proprietary rights. Subscriber may not remove any product identification, copyright, trademark or other notice from any RizePoint products. SUBSCRIBER ACKNOWLEDGES THAT ANY INFRINGEMENT OF RIZEPOINT’S PROPRIETARY RIGHTS MAY CAUSE IRREPARABLE HARM TO RIZEPOINT. AS A RESULT, RIZEPOINT SHALL BE ENTITLED TO SEEK INJUNCTIVE RELIEF IF ITS PROPRIETARY RIGHTS ARE INFRINGED BY SUBSCRIBER.
- Subject to Subscriber’s rights in Subscriber Data, RizePoint retains all right, title and interest in and to all works derived either in whole or in part from the Service.
- In the event Subscriber makes any improvements, modifications, or amendments to the Service, any and all right, title, and interest in and to those improvements, modifications or amendments are the sole and exclusive property of RizePoint.
- Use of Names, Logos and/or Trademarks. Subscriber grants RizePoint the right to include the Subscriber’s name, logo and/or trademark in RizePoint’s marketing and promotional material and on the RizePoint website. Subscriber may opt to have its name, logo, and/or trademark excluded from such use by RizePoint only by submitting a detailed email request regarding the same to nonpublicity@RizePoint.com. The subject line in such email should be entitled “Non-use of Subscriber Name.”
7. MICROSTRATEGY SUBLICENSE.
- RizePoint represents as follows: Certain software products known generally as Enterprise Intelligence Level I and Enterprise Intelligence Level II (collectively, “Enterprise Intelligence”) are embedded in the Service. Enterprise Intelligence, together with related documentation, is licensed from MicroStrategy Service Corporation of Tysons Corner, Virginia, and MicroStrategy Limited of London, England (collectively, “MicroStrategy”) by RizePoint. Enterprise Intelligence contains copyrighted and proprietary products and materials of MicroStrategy.
- The Enterprise Intelligence products embedded in the Software are sublicensed by RizePoint to Subscriber subject to the following restrictions: (i) Subscriber shall use Enterprise Intelligence solely with the other RizePoint products currently licensed by Subscriber; (ii) Subscriber’s use of Enterprise Intelligence is limited to the number of users identified in the Order Form, or in subsequent documents as additional users are added; (iii) No title to Enterprise Intelligence is passed to Subscriber; (iv) MicroStrategy disclaims any warranty of any kind directly to Subscriber, including a warranty of performance, merchantability, fitness for a particular purpose, title and non-infringement; (v) MicroStrategy disclaims any liability for damages, whether direct or indirect, incidental or consequential, arising in connection with the sublicense; (vi) Subscriber is prohibited from reverse engineering, disassembling or decompiling Enterprise Intelligence; (vii) Subscriber shall not use Enterprise Intelligence in any manner that violates any individual’s privacy rights; and (viii) If Subscriber exports Enterprise Intelligence, it shall comply fully with all relevant export laws and regulations of the United States to ensure that neither Enterprise Intelligence, nor any direct product thereof, are exported, directly or indirectly, in violation of United States law.
- Subscriber Acknowledgement. Subscriber acknowledges the foregoing representation of RizePoint and agrees to comply with the restrictions set forth above as to Enterprise Intelligence.
- Adherence to Practices and Policies. RizePoint will comply with and adhere to the SSLA and RizePoint’s data management protection, deletion, and security policies online at http://www.RizePoint.com/securitypractices.
- Infringement/Ownership.RizePoint warrants that it is the sole owner of the Service and of each and every component thereof, or possesses a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property and other rights granted to Subscriber without the further consent of any third party. RizePoint warrants that, to its knowledge, the Services do not infringe an intellectual property right of any third party.
- Right to Do Business. Each party warrants that it has the full right and authority to enter into and perform its obligations under the Order Form and these Terms and Conditions and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required.
- Disclaimers. Except for the express warranties specified in this Section 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND RIZEPOINT MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. RIZEPOINT DOES NOT WARRANT THAT THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. RIZEPOINT SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE. Some states do not allow the exclusion of implied warranties or the limitations or exclusion of liability for incidental or consequential damages, so the exclusion in this section 8.e may not apply to the Subscriber. This limited warranty gives the Subscriber specific legal rights, and the Subscriber may have other rights that vary from state to state.
9. LIMITATION OF LIABILITY.
- Limitation on RizePoint’s Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX (6) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
- Remedies for Infringement: If the Service becomes, or in either party’s reasonable opinion is likely to become, the subject of any claim, suit, or proceeding arising from or alleging infringement of any intellectual property right, or in the event of any adjudication of infringement of any such right, RizePoint, at its own expense and in its sole discretion, will: (i) secure for Subscriber the right to continue using the Service or Software, as the case may be; (ii) replace or modify the Service to make it non-infringing, provided such modification or replacement will not materially degrade any functionality relied upon by Subscriber; or (iii) terminate the Service and refund any pre-paid and unused fees to Subscriber. The remedies set forth in the preceding sentence are exclusive of any others Subscriber may have at law or in equity, and remain subject to the Limitation on RizePoint’s Liability in Section 9(a).
- Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- Confidential Information. “Confidential Information” means all 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. Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the Disclosing Party.
- Nondisclosure Obligations. The Receiving Party will not use Confidential Information for any purpose other than to facilitate the provision of the Service (the “Purpose”). The Receiving Party: (i) will not disclose Confidential Information to any employee or contractor of the Receiving Party unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with the Receiving Party, with terms no less restrictive than those set forth herein; and (ii) will not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party will give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
- Injunction. The Receiving Party agrees that breach of this Section 10 might cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Termination and Return. The obligations of Subsection 10.b above will terminate three (3) years after termination of the Contract Term. Upon the Disclosing Party’s written request, the Receiving Party will return all copies of Confidential Information to the Disclosing Party or certify, in writing, the destruction thereof.
- Retention of Rights. This Section 10 does not transfer ownership of Confidential Information or grant a license thereto. Unless specifically provided otherwise herein, the Disclosing Party will retain all right, title, and interest in and to all Confidential Information.
- Previous Non-Disclosure Agreement. For the avoidance of doubt, these provisions do not supersede any Non-Disclosure Agreements entered into between the parties prior to the date of the Order Form.
11. ASSIGNMENT & SUCCESSORS.
Neither party may assign any of its rights or obligations under an Order Form, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign its rights under an Order Form in their entirety, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. 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. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Notices. Any notice required or permitted to be given will be effective only if it is in writing and will be deemed given upon: (i) personal delivery to the appropriate person at the address set forth in the Order Form, (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) to the address set forth in the Order Form, or (iii) the first business day after sending by confirmed email, provided that email shall not be sufficient for notices of termination or claims. If notice is sent to RizePoint, an additional copy must be sent to: Timothy B. Anderson, Esq., Jones, Waldo, Holbrook, & McDonough, 301 North 200 East, Suite 3A, St. George, UT 84790.
- Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach will constitute a waiver of any prior or subsequent breach.
- Force Majeure. Force Majeure. Neither Party shall be liable for a breach of this Agreement caused by a Force Majeure Events. Following the occurrence of a Force Majeure Event, each Party may terminate this Agreement without any penalty upon three (3) business days’ written notice to the other Party.
- Technology Export. Subscriber agrees to comply fully with all relevant export laws and regulations of the United States of America. Subscriber represents, warrants and agrees that it will not, directly or indirectly, export, re-export or transmit the Software or data, information, and/or materials resulting from the Service (or direct product thereof) to any country in which such export, re-export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent of both RizePoint and, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.
- Anti-Corruption. Subscriber acknowledges that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employee or agent of RizePoint in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Subscriber agrees to use reasonable efforts to promptly notify RizePoint if it learns of any violation of the above restriction.
- Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Utah, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Salt Lake County, Utah.
- Attorney Fees. Subscriber agrees to pay on demand all reasonable attorney fees and other costs incurred by RizePoint to collect any fees or charges due under the Order Form. In the event either party shall file suit to enforce the terms of an Order Form or these Terms and Conditions, the prevailing party shall be entitled to the award of reasonable attorney fees and costs.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these Terms and Conditions invalid or otherwise unenforceable in any respect. In the event that a provision is held by a court of competent jurisdiction to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these Terms and Conditions will continue in full force and effect.
- Entire Agreement. The Order Form and these Terms and Conditions set forth the entire agreement of the parties and supersede all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter thereof. Neither party has relied upon any such prior or contemporaneous communications.