PLATFORM:HR SAAS TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS ALONG WITH THE ORDER FORM (AS FURTHER DEFINED BELOW), TOGETHER, THE “AGREEMENT,” FORMS A LEGAL AND BINDING CONTRACT BETWEEN THE COMPANY LICENSING THE SOFTWARE (“CUSTOMER”) AND RAKE DIGITAL COMPANY LLC (“RAKE”). THE AGREEMENT GOVERNS THE SUPPLY OF THE COMMERCIALLY AVAILABLE VERSION OF THE PLATFORM:HR SAAS APPLICATIONS (INCLUDING AGENT SOFTWARE), CUSTOMER’S ACCESS THERETO, AND USE OF THE PLATFORM:HR SAAS APPLICATIONS (AS FURTHER DEFINED BELOW, THE “SOFTWARE”). THE APPLICATIONS DESCRIBED ON THE ORDER FORM SHALL BE DELIVERED BY MEANS OF CUSTOMER’S PERMITTED ACCESS TO THE PLATFORM:HR INFRASTRUCTURE HOSTING SUCH APPLICATIONS.
BY MANUALLY OR ELECTRONICALLY EXECUTING AN INITIAL ORDER FORM REFERENCING THESE TERMS AND CONDITIONS OR TO WHICH THESE TERMS ARE ATTACHED, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR ALL ORDER FORMS. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER. THESE TERMS AND CONDITIONS AND THE ORDER FORM(S) (AND ANY ATTACHMENTS THERETO) TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND RAKE.
BY ACCESSING AND USING THE SOFTWARE (INCLUDING THE AGENT SOFTWARE), AND BY SIGNING ITS ORDER FORM, CUSTOMER INDICATES ITS ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, CUSTOMER MUST PROMPTLY (A) DELETE THE AGENT SOFTWARE FROM ANY AND ALL OF CUSTOMER’S COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF THE AGENT SOFTWARE IN CUSTOMER’S POSSESSION AND ALL ACCOMPANYING MATERIALS, INCLUDING PACKAGING AND DOCUMENTATION, AND (B) CEASE ALL OF CUSTOMER’S USE OF THE SOFTWARE.
THIS SOFTWARE IS LICENSED, NOT SOLD. CUSTOMER MAY USE ONLY THE VERSION OF THE SOFTWARE THAT CUSTOMER HAS LICENSED AND HAS PAID FOR, AND CUSTOMER MUST USE IT STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ALL EMPLOYEES, CONTRACTORS, AND OTHER USERS (“AUTHORIZED USERS”) WITHIN ITS ORGANIZATION ABIDE BY THE TERMS OF THIS AGREEMENT.
RAKE RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AT ANY TIME, EFFECTIVE UPON MAKING THE MODIFIED PROVISIONS AVAILABLE THROUGH THE AGENT SOFTWARE UPDATES OR THROUGH CUSTOMER’S CONTINUED USE OF THE SOFTWARE AFTER RAKE POSTS OR OTHERWISE NOTIFIES THE CUSTOMER.
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"Agreement" means these terms and conditions and the Order Form(s).
"Application(s)" or "SAAS Application(s)" means those RAKE software application programs set forth on an Order Form which are made accessible for Customer to use under the terms of this Agreement.
“Agent Software” means those RAKE software application program components that are installed on Customer’s computers.
“Software” shall mean all the software provided by RAKE collectively (including without limitation the Agent Software and SAAS Applications), and each separate component of the foregoing individually, any updates, upgrades or enhancements to the Software or any Software component provided to Customer by RAKE, including without limitation, any support software provided to Customer by RAKE via the internet, e-mail or by any other means.
"Billing Start Date" means the date the billing of the Monthly Service Fees commences as indicated on the applicable Order Form. The Billing Start Date of the Monthly Service Fees for any Services ordered by Customer after the date of this Agreement which are incremental to Customer's then-existing Services shall be the date the applicable Order Form is executed by RAKE and Customer.
"Confidential Information" means any non-public information of a party or its Suppliers relating to such entity's business activities, financial affairs, technology, marketing or sales plans that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary and confidential to the disclosing party or its Suppliers.
"Customer Content" means all content Customer, or others acting on behalf of or through Customer, posts or otherwise inputs into the Services.
"Documentation" means technical publications published by RAKE relating to the use of the Services.
"Initial Term" means the initial term of the Services as indicated on the Order Form.
"Minimum Contract Value" means the total of all Monthly Service Fees to be invoiced during the Initial Term or a Renewal Term, as applicable.
"Monthly Service Fee(s)" means the monthly fees described in an Order Form. Monthly Service Fees include fees for usage of the Applications or the Services. Billing of the Monthly Service Fee(s) commences on the Billing Start Date.
"Order Form" means the document or other method (including, but not limited to, online or e-mail order form) mutually agreed upon by RAKE and Customer setting forth the items ordered by Customer and to be provided by RAKE and the fees to be paid by Customer.
"Personally Identifiable Information" means information concerning any individually identifiable person that is protected against disclosure under applicable law or regulation.
"Renewal Term" means the renewal term of the Services as indicated on the Order Form.
"Services" means accessibility to the commercially available version of the Applications by means of access to the password protected customer area of the Platform:HR website, and all such services, items and offerings accessed by Customer therein.
"Supplier" means any contractor, subcontractor or licensor of RAKE providing software or services to RAKE which are incorporated into or otherwise related to the Services.
"Term" means the Initial Term and any Renewal Terms thereafter.
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The Services shall commence on the Billing Start Date, and shall continue for the Initial Term or until terminated in accordance with the provisions hereof. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated in accordance with the provisions hereof.
Customer may terminate the Services and this Agreement for convenience upon ninety (90) days prior written notice subject to Customer's payment of the Minimum Contract Value. RAKE may terminate the Services and this Agreement to be effective at the expiration of the then current Term upon no less than sixty (60) days prior written notice.
Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within thirty (30) days after receipt of written notice. Notwithstanding the foregoing, RAKE may suspend the Services immediately upon notice in the event of any Customer breach of Sections 4 (Rights to Use), 5 (Acceptable Use), or 14 (Confidential Information).
In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party's reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.
If the Agreement is terminated for any reason:
Customer shall pay RAKE within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, provided however, if Customer terminates for material breach of the Agreement by RAKE, RAKE shall refund Customer any pre-paid fees for services not delivered by RAKE;
Customer's right to access and use the Applications (including Agent Software) shall be revoked and be of no further force or effect.
No more than fifteen (15) days after termination (or upon Customer's written request at any time during the Term), RAKE will provide to Customer, at no charge to Customer, the Customer Content. After such time period, RAKE shall have no further obligation to store or make available the Customer Content and will securely delete any or all Customer Content without liability;
Customer agrees to timely return all RAKE-provided materials related to the Services to RAKE at Customer's expense or, alternatively, destroy such materials and provide RAKE with an officer's certification of the destruction thereof; and
All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
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Customer shall pay RAKE the Setup Fees, the Monthly Service Fees and any additional one time, setup or recurring fees, all as defined on the Order Form. Billing will commence on the Billing Start Date with the Monthly Service Fees to be billed on the frequency set forth on the Order Form ("Billing Frequency"). Unless otherwise indicated on the Order Form, RAKE will bill Customer for all implementation services in advance. Unless otherwise indicated on the Order form, Customer authorizes RAKE to charge the debit card or credit card on file with RAKE in an amount equal to the Monthly Service Fees as all such fees become due under this Agreement. For all other payments and fees due under this Agreement, payment shall be due 10 days following date of invoice unless otherwise indicated on an Order Form. Except as expressly set forth in the Agreement, all amounts paid to RAKE are non-refundable. Customer is responsible for all applicable taxes relating to the goods and services provided by RAKE hereunder (including without limitation GST and/or VAT if applicable), excluding taxes based on RAKE’s income or business privilege.
The Setup Fees shall be invoiced upon execution of the Agreement and shall be due net 10 days following date of invoice. Monthly Service fees shall be based on monthly periods that begin on the Billing Start Date. Monthly Service Fees shall include fees for Equipment rental, if any. Monthly Service Fees for Services added on or before the 15th day of a given month will be charged for that full monthly period and each monthly period of the Term thereafter; Monthly Service Fees for Services added after the 15th day of a given month will begin to accrue as of the 1st day of the following month and will be charged for each monthly period of the Term thereafter. Monthly Service Fees shall be invoiced promptly following the end of the calendar month in which the Monthly Service Fees were accrued. RAKE will monitor Customer's "Usage" of the Services (as defined below) in order to calculate the Usage portion of the Monthly Service Fees, to be charged, as set forth on the Order Form (“Usage Fees”). Usage of the Services, depending on applicable features, components, or services, shall be priced as identified on the Order Form either on a: (a) per month basis; (b) per active company (herein "Active Company") per month usage basis; (c) per transaction basis (e.g.: API calls); or, (d) per user. For purposes of the Agreement, a company shall be deemed an Active Company during any applicable billing period if through the Services: (i) records have been included for such company for the purpose of processing payroll; such company’s records have been used in part or aggregate by the Services, regardless of the purpose.
Customer agrees that except in those circumstances in which Customer is entitled to invoke the termination for cause provision set forth in Section 2.3 above, in consideration of RAKE’s delivery of the Services on a variable fee basis, Customer agrees to pay RAKE each month during the Term in which charges accrue no less than the minimum monthly fees ("Minimum Monthly Fees") which shall be calculated by RAKE based the amounts identified on all Order Forms for Customer's Usage of the Services. In the event that Customer does not reach the anticipated Usage upon which the Minimum Monthly Fees was based for any given month during the Term, Customer shall remain responsible for paying the Minimum Monthly Fees for that month. If an Order Form or the Agreement is suspended by RAKE for non-payment or otherwise terminated by RAKE for cause, Customer shall remain liable to pay the applicable Minimum Monthly Fees up to and including the last day of the month in which the effective date of termination occurs.
If any amount owing under this or any other agreement between the parties is thirty (30) or more days overdue, RAKE may, without limiting RAKE’s rights or remedies, suspend Services until such amounts are paid in full. RAKE will provide at least seven (7) days' prior written notice that Customer's account is overdue before suspending Services.
At the later of (i) one (1) year after the effective date of this Agreement, or (ii) expiration of the Initial Term, and at each annual anniversary of that date thereafter, RAKE may increase the Monthly Service Fee rates in an amount not to exceed ten percent (10%). The increased Monthly Service Fees will be reflected in the monthly invoice following the effective date of such increase without additional notice.
Customer agrees that except if Customer terminates for material breach of the Agreement by RAKE, if Customer has not paid the Minimum Contract Value to RAKE prior to the expiration or termination of the Initial Term or a Renewal Term, as applicable, Customer shall pay within thirty (30) days of the date of such expiration or termination, the difference between the total Monthly Service Fees then paid by Customer for the Initial Term or Renewal Term, as applicable, and the Minimum Contract Value.
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Subject to the terms and conditions of the Agreement, RAKE hereby grants Customer a limited, revocable, non- exclusive, non-transferable, non-assignable license to use during the Term and for internal business purposes only: a) the Agent Software, SAAS Applications and related services, including the Documentation and training materials; and,
b) any embedded third party software, libraries, or other components, which form a part of the Services.
The Services contain proprietary trade secret technology of RAKE and its Suppliers. Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law. Customer shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Customer acknowledges and agrees that the right to use the Services is limited based upon authorized Usage and the amount of the Monthly Service Fees to be paid by Customer.
Customer agrees to use only the modules and/or features described on the Order Form. Customer agrees not to use any other modules or features unless Customer has licensed such additional modules or features. Customer may not relicense or sublicense the Services, or otherwise permit use of the Services (including timesharing or networking use) by any third party. Customer may not provide data processing or other services that make use of the Services without the express prior written consent of RAKE. No license, right, or interest in any RAKE trademark, trade name, or service mark, or those of RAKE’s licensors or Suppliers, is granted hereunder. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with applicable laws and regulations.
Customer may only install the Agent Software on the number of computers within the Customer’s organization as specified on the Order Form.
Customer agrees not provide access to a competitor of RAKE who provides client funds reconciliation services.
Customer acknowledges and agrees that, as between Customer and RAKE, RAKE retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing. Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.
RAKE will make updates and upgrades to the Services (tools, utilities, improvements, third party applications, general enhancements) available to Customer at no charge as they are released generally to its customers as part of the Services. Customer agrees to receive those updates automatically as part of the Services. RAKE also may offer new products and/or services to Customer at an additional charge. Customer shall have the option of purchasing such new products and/or services under a separate Order Form.
RAKE reserves the right to change the Services, in whole or in part, including but not limited to, the Internet based services, technical support options, and other Services-related policies. Customer's continued use of the Services after RAKE posts or otherwise notifies Customer of any changes indicates Customer's agreement to those changes.
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Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of this Agreement.
Customer represents and warrants to RAKE that Customer has the right to publish and disclose the Customer Content in connection with the Services. Customer represents and warrants to RAKE that the Customer Content: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, or, (c) is not hateful or threatening.
Customer will not (a) use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the RAKE systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or,
(f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.
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Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, third party services and related equipment and components); and (b) provide RAKE and RAKE’s representatives with such physical or remote access to Customer's computer and network environment as RAKE deems reasonably necessary in order for RAKE to perform its obligations under the Agreement. Customer will make all necessary arrangements as may be required to provide access to Customer's computer and network environment if necessary for RAKE to perform its obligations under the Agreement. RAKE is hereby (i) granted access to such Customer data to perform its obligations under the Agreement and (ii) authorized to audit the number of Active Company counts or other transactions that have occurred to measure Usage.
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Implementation. RAKE will configure the Services utilizing scheduled remote resources. Software module configuration will be based on information and workflows obtained from Customer during the discovery portion of the implementation. Customer shall provide RAKE with necessary configuration related information in a timely manner to ensure that mutually agreed implementation schedules are met. RAKE and Customer's implementation responsibilities are described more specifically below:
Client Funds Reconciliation (“Assure”). It is the responsibility of Customer to provide RAKE with a database login and user account with sufficient read-only permissions for accessing tables and records required to perform client funds reconciliation using the Assure module. It is the responsibility of RAKE to engineer database queries specific to Customer necessary to perform client funds reconciliation using the Assure module.
Standard Support. RAKE will provide standard support from 9:00 a.m. to 5:00 p.m., Eastern Time, Monday - Friday. Customers also shall be provided the capability to log questions online via the RAKE Service Desk. Unless otherwise stated on the Order From, Standard Support shall be limited to 4 hours per month at no cost, and any additional hours of support shall be billed in hourly increments at a rate of $100 per hour.
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Customer shall own all Customer Content. RAKE acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Notwithstanding the foregoing, RAKE shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related services and systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and RAKE will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Software and related services and for other development, diagnostic and corrective
purposes in connection with the Software and related services and other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. In addition, RAKE may, but shall have no obligation to, monitor Customer Content from time to time to ensure compliance with the Agreement and applicable law.
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RAKE shall: (a) provide basic support for the Services at no additional charge, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (when it shall give at least 6 hours’ notice via e-mail or other reasonably accepted means and shall schedule to the extent practicable during the hours from 9:00 p.m. to 3:00 a.m., Eastern Time), or (ii) any unavailability caused by circumstances beyond RAKE’s reasonable control, including without limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving RAKE employees), Customer computer, network, or database availability issues, internet service provider failures or delays, or denial of service attacks, and (iii) provide Services in accordance with applicable laws and government regulations.
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As part of the Services, RAKE shall provide administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Customer data. Customer acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Customer should consider any particular RAKE supplied security-related safeguard as just one tool to be used as part of Customer's overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.
As between Customer and RAKE, all Personally Identifiable Information is Customer's Confidential Information and will remain the property of Customer. Customer represents that to the best of Customer's knowledge such Personally Identifiable Information supplied to RAKE is accurate. Customer hereby consents to the use, processing or disclosure of Personally Identifiable Information by RAKE and RAKE’s Suppliers wherever located only for the purposes described herein and only to the extent such use or processing is necessary for RAKE to carry out RAKE’s duties and responsibilities under the Agreement or as required by law.
Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Customer agrees to provide notice to RAKE of any extraordinary privacy or data protection statutes, rules, or regulations which are or become applicable to Customer's industry and which could be imposed on RAKE as a result of provision of the Services. Customer will ensure that: (a) the transfer to RAKE and storage of any Personally Identifiable Information by RAKE or RAKE’s Supplier's data center is permitted under applicable data protection laws and regulations; and, (b) Customer will obtain consents from individuals for such transfer and storage to the extent required under applicable laws and regulations.
LIMITED WARRANTY AND DISCLAIMERS OF WARRANTY
RAKE represents and warrants to Customer that RAKE shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner that minimizes errors and interruptions to the Service when used under normal circumstances and when used as authorized herein.
RAKE’s sole obligation and Customer's sole and exclusive remedy for any breach of the foregoing warranty is limited to RAKE’s reasonable commercial efforts consistent with prevailing industry standards to correct the non-conforming Services at no additional charge to Customer. In the event that RAKE is unable to correct material deficiencies in the Services arising during the Warranty Period, after using RAKE’s commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer's sole and exclusive remedy. RAKE’s obligations hereunder for breach of warranty are conditioned upon Customer notifying RAKE of the material breach in writing, and providing RAKE with sufficient evidence of such non-conformity to enable RAKE to reproduce or verify the same.
The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by RAKE or by third-party providers, or because of other causes beyond RAKE’s reasonable control, but RAKE shall use reasonable efforts to provide advance notice in writing or by e-mail described herein.
EXCEPT AS PROVIDED FOR IN THIS SECTION 10, RAKE DOES NOT WARRANT THAT THE SERVICE, THE SAAS APPLICATIONS OR ANY OF ITS COMPONENTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE AND ALL SERVICES UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND RAKE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICE OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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Customer agrees to defend, indemnify and hold harmless RAKE, and its employees, officers, contractors, investors, directors, agents, licensors and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from a violation of the foregoing or from (a) Customer’s or any users authorized by Customer (“Authorized Users and Organizations”) installation Agent Software or use of the SAAS Applications or Services, including without limitation claims relating to loss or confidentiality of data or programs (b) any violation by Authorized Users or Organizations of any warranty, representation or covenant under this Agreement, (c) Authorized Users and Organizations infringement of any third-party’s rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), and/or the use or misuse of the Service by Company and its Authorized Users and Organizations.
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TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER RAKE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
TO THE FULLEST EXTENT ALLOWED BY LAW, RAKE’S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY RAKE FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.
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Each Party shall protect the Confidential Information of the other Party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such Party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither Party shall disclose to third parties the other Party's Confidential Information, or use it for any purpose not explicitly authorized herein, without the prior written consent of the other Party. The obligation of confidentiality shall survive for five (5) years after the return of such Confidential Information to the disclosing party or five (5) years after the expiration or termination of the Agreement, whichever is later, as applicable.
Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a non-disclosure agreement with obligations at least as stringent as this Section 14, or (c) by law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section 14, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction.
This Agreement imposes no obligation upon either Party with respect to the other Party's Confidential Information which the receiving Party can establish: (a) is or becomes generally known through no breach of the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving party without use of or reference to the Confidential Information.
If the Company provides any feedback, comments, suggestions, ideas, description of processes, or other information to RAKE about or in connection with the deliverables or services provided under this Agreement, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback”), then it shall grant RAKE a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to the Company or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed another party’s Confidential Information, and nothing in this Agreement limits RAKE’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Termination. Either Party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement within 10 days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party. In addition, during any period when the Company is in default on any payment due to the Licensor, the Licensor may disable access to the Services, SAAS Applications, or Agent Software. The provisions of this Agreement concerning intellectual property, Confidentiality and those in Sections 11, 12, 13, 14, and this section 15 shall survive indefinitely.
Dispute Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, except in the event a Party seeks to obtain injunctive relief, the parties agree to seek to resolve the dispute pursuant to commercial mediation in Roanoke, Virginia, within 90 days of written notice from one Party to another before filing suit or taking court action. Once the 90-day period is over, either party may file suit or take court action as follows. This Agreement will be governed by and construed in accordance with the applicable laws of the Commonwealth of Virginia, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Roanoke, Virginia, USA, and each Party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Roanoke, Virginia, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other Party. The breach of certain provisions of this Agreement could cause irreparable harm and significant injury to a Party that may be difficult to ascertain. Accordingly, each Party agrees that the non-breaching Party will have the right to seek and obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have, without the requirement of posting, and hereby waiving, any bond.
Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events that are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
Costs. Each Party shall bear its own legal and other costs in connection with the negotiation and preparation of this Agreement.
Entire Agreement. This Agreement is the entire agreement between RAKE and the Company relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the license or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement shall not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give one Party the express or implied right, power or authority to create any duty or obligation of the other party. Any notice, report, approval or consent required or permitted under this Agreement will be in writing to the address specified herein or other address as may be given in writing by either party to the other. Neither Party may transfer this Agreement without the other party's prior written consent except as part of an internal corporate reorganization or a transaction by which all or substantially all of that party's assets are transferred to a third party. This Agreement may be executed by electronic transmission and in counterparts.