MASTER SUBSCRIPTION AND LICENSE AGREEMENT
Effective: September 1, 2020
By executing the Service Order that references this Master Subscription and License Agreement (“MSLA” and together with the Service Order and all references incorporated into this MSLA, this “Agreement”), effective on the date set forth in the Service Order (the “Effective Date”), Speed to Contact, LLC, a California limited liability company (“Speed to Contact”) and the person or entity identified in the Service Order as the customer (“Customer”) acknowledge and agree that these binding standard terms and conditions apply. Speed to Contact and Customer are referred to herein, individually as a “Party,” and collectively as the “Parties.”
1. DEFINITIONS.
Capitalized terms shall have the meanings provided in this section or as specified in the body of this Agreement.
“Authorized User” means an individual who is authorized by Customer to use the Ricochet360 Platform in accordance with this Agreement. The rights of any Authorized User to use the Ricochet360 Platform cannot be shared or used by more than one individual (unless such right is reassigned in its entirety to another Authorized User).
“Customer Data” means any data, files, text, graphics, images, information, or other materials of any kind that Customer transmits to, uploads to, transfers to, processes on, stores in, or causes to interface with, the Ricochet360 Platform, or used by Customer or Customer’s Authorized Users in connection with the Ricochet360 Platform.
“Ricochet360 Platform” means the STC Software and related services, including without limitation, the online, web-based applications, and technology platform provided by Speed to Contact and as improved and updated by Speed to Contact from time to time.
“Service Order” means the service order(s) accepted or executed by Customer from time to time that identifies the items ordered by Customer from Speed to Contact and sets forth the number of initial Authorized Users purchased, the Subscription Period, applicable Fees, and other relevant terms and conditions. Each Service Order that expressly refers to this Agreement will form part of this Agreement and will be subject to the terms and conditions contained herein.
“STC Software” means the applicable STC Technology services listed on the Service Order.
“STC Technology” means all of Speed to Contact’s proprietary technologies, including but not limited to software, applications, computer programs, source code, object code, algorithms, systems, processes, methods, formatting, designs, patents, or other technology, whether or not patentable, copyrightable or otherwise subject to intellectual property protection, whether now in existence or hereinafter devised, including any and all modifications, reconfigurations, and enhancements thereto.
2. RICOCHET360 PLATFORM.
2.1 Ownership. Speed to Contact and its licensors reserve sole and exclusive ownership of all right, title, and interest in and to the Ricochet360 Platform, including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights embodied therein.
2.2 Limited License. Speed to Contact grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Subscription Period to access and use the Ricochet360 Platform via Speed to Contact’s cloud-based services (subject to Customer having a valid Account as described below), solely for Customer’s internal business purposes, subject to and in accordance with this Agreement. Customer’s access and use of the Ricochet360 Platform is expressly limited to the number of Authorized Users set forth the applicable Service Order or subsequently modified in Customer’s Account in accordance with this Agreement. Speed to Contact and its licensors reserve all rights, title, and interest in and to the Ricochet360 Platform not expressly granted to Customer under this Agreement.
2.3 Restrictions; Prohibited Uses. Customer acknowledges that the Ricochet360 Platform contains trade secrets of Speed to Contact and its licensors, and Customer agrees not to access or use the Ricochet360 Platform in any manner inconsistent with Speed to Contact’s proprietary rights. Customer will not, and agrees not to, (a) use, or permit the use of, the Ricochet360 Platform except as expressly authorized under this Agreement, (b) interfere with or disrupt the integrity or performance of the Ricochet360 Platform or any third party application or third party data or content contained therein, (c) reverse engineer, decompile, disassemble, decrypt, or otherwise tamper with the Ricochet360 Platform; (d) derive the trade secrets, source code, object code, algorithms, or such other code (in the form in which it is customarily read and edited) of the Ricochet360 Platform; (e) defeat, avoid, by-pass, remove, disable, deactivate or otherwise circumvent any software protection mechanisms, restrictions on access, or any other features or functionalities of the Ricochet360 Platform; (f) gain unauthorized access to the Ricochet360 Platform; (g) disseminate viruses, adware, spyware, worms, or other malicious code in or through the Ricochet360 Platform; (h) overload, flood, spam, or otherwise create an undue burden on the Ricochet360 Platform infrastructure; (i) reproduce, copy, modify, adapt, translate, emulate, or create derivative works of the Ricochet360 Platform; (j) distribute, sell, sublicense, or otherwise transfer or provide access to the Ricochet360 Platform; (k) access the Ricochet360 Platform for the purpose of building a similar or competitive product or service; (l) monitor availability, performance, or functionality of the Ricochet360 Platform for any benchmarking or competitive purposes; (m) remove, alter, or obscure any proprietary or intellectual property rights notices or marks appearing on the Ricochet360 Platform; (n) use the Ricochet360 Platform in any manner that is unlawful, in violation of any third party rights, or in violation of this Agreement; or (o) attempt to do any of the foregoing acts or assist or permit any third party to do any of the foregoing acts. Speed to Contact may suspend Customer’s access to and use of the Ricochet360 Platform as Speed to Contact deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the Ricochet360 Platform. Speed to Contact may terminate this Agreement and Customer’s right to access and use the Ricochet360 Platform at any time without notice if the Customer fails to comply with this Agreement.
2.4 Feedback and Derivative Works. Customer is not required to provide (a) any suggestions, comments, requests, recommendations, or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works, or other intellectual property (“Derivative Works”) related to the Ricochet360 Platform or any test features, services, or products to which Customer is given access. If Customer provides any Feedback or Derivative Works to Speed to Contact, Customer grants Speed to Contact a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use (or not use), or incorporate into the Ricochet360 Platform, any Feedback or Derivative Works without compensation to Customer and without implying or creating any interest on Customer’s part in the Ricochet360 Platform that may be based on such Feedback. Customer may only create Derivative Works relating to the Ricochet360 Platform or any test features, services, or products to which Customer is given access, with prior written consent from Speed to Contact.
2.5 Third-Party Applications. Speed to Contact may offer Customers the ability to use third-party applications in combination with the Ricochet360 Platform. In connection with any such third-party application used by Customer, Customer acknowledges and agrees that Speed to Contact may allow such third party application service providers access to Customer Data as required for the interoperation of such third-party application with the Ricochet360 Platform. The use of a third party application with the Ricochet360 Platform may also require Customer to agree to a separate agreement or terms and conditions with the applicable third-party application service providers, which will govern Customer’s use of such third party applications. Other than third party services provided by Speed to Contact as necessary to facilitate the provision of the Ricochet360 Platform, Speed to Contact shall have no liability for any claims, losses, or damages arising out of or in connection with Customer’s or Customer’s Authorized Users’ use of any third-party applications that are accessed from or used in combination with the Ricochet360 Platform.
2.6 Customer Account. In order to access and use the Ricochet360 Platform, the Customer will need to register and create an account (“Account”). Customer’s Account includes all individual Authorized Users’ Accounts. The customer agrees to provide accurate, current, and complete information necessary for the registration of the Customer’s Account. Speed to Contact reserves the right to suspend or terminate Customer’s Account or any individual Authorized User’s Account if any information provided during the registration process or thereafter is or becomes inaccurate, false, or misleading. Customer is responsible for maintaining the confidentiality of Customer’s Account, including all user names and passwords assigned to or created by its Authorized Users, and agrees to notify Speed to Contact if any of the passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. Speed to Contact shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided by Customer to Speed to Contact in connection with the Ricochet360 Platform.
2.7 Customer Responsibilities. Customer acknowledges and agrees that (a) Customer is solely responsible for all activity that occurs under Customer’s Account, including its Authorized Users’ activities on the Ricochet360 Platform, (b) Customer is solely responsible for Customer Data (other than with respect to the Speed to Contact obligations in this Agreement), (c) Customer will obtain and maintain at all times all necessary consents, agreements, and approvals from individuals or any other third parties for all actual or intended uses of information, data, or other content Customer will use in connection with the Ricochet360 Platform, (d) Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Ricochet360 Platform and notify Speed to Contact promptly of any known unauthorized access or use, and (e) Customer will use the Ricochet360 Platform only in accordance with Applicable Laws. Customer further acknowledges and agrees that Speed to Contact is not required to monitor or police communications or data transmitted through the Ricochet360 Platform and that Speed to Contact will not be responsible for the practices or content of any such communications or transmissions.
2.8 Third-Party Administrator. Customer hereby authorizes Speed to Contact to grant limited access to Customer’s Account on the Ricochet360 Platform, including Authorized User Accounts and Customer Data, to a designated third party administrator (“Third Party Administrator”), as applicable, for onboarding, configuration, administration, management, and support services (“Account Administration”). Third-Party Administrator will be bound by a written confidentiality agreement with obligations at least as restrictive as those set forth herein, and shall only access Customer’s Account on a need to know basis and keep confidential all Customer Data. Third-Party Administrator will not use or disclose Customer Data for any purpose other than Account Administration and shall keep secure and protect Customer Data from unauthorized access, use, or disclosure. Speed to Contact shall be responsible for any breach of this Agreement by a Third Party Administrator.
2.9 No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement in reliance upon or contingent on the provision of any functionality not currently provided as part of the Ricochet360 Platform unless expressly stated in a Service Order and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in a Service Order.
3. CUSTOMER DATA.
3.1 Ownership; Limited License. As between Customer and Speed to Contact, Customer retains ownership of all rights, title, and interest in and to all Customer Data, including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights embodied therein. Customer (on behalf of itself and all of its Authorized Users) grants Speed to Contact a non-exclusive, non-transferable, non-sublicensable (except as needed for the provision of Ricochet360 Platform), worldwide, royalty-free, limited license to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export, and display Customer solely in connection with Customer’s use of the Ricochet360 Platform and Speed to Contact’s provision of the Ricochet360 Platform to Customer. Customer reserves all rights, title, and interest in and to Customer Data not expressly granted to Speed to Contact under this Agreement.
3.2 Protection of Customer Data. Speed to Contact will maintain commercially reasonable administrative, physical, and technical safeguards to protect the security and confidentiality of Customer Data. Notwithstanding the foregoing, Customer consents to Speed to Contact’s internal access, collection, transmission, storage, copying, processing, analysis and use of Customer Data (a) in order to provide to Customer the Ricochet360 Platform and to monitor compliance with this Agreement, (b) for Account Administration, (c) to prevent or address service or technical problems in connection with support matters, (d) as expressly permitted in writing by Customer, and (e) in anonymized, de-identified, or aggregated format without the use of any personally identifiable information, for research and development purposes related to the Ricochet360 Platform and the improvement and development of Speed to Contact product and services. Speed to Contact owns and maintains the right, title, and interest in and to any data or information regarding the use or optimization of the use of the Ricochet360 Platform, so long as such data does not include Customer Data.
3.3 Data Maintenance. Speed to Contact will follow its internal archival procedures for Customer Data, including regular backups of all Customer Data. In the event of any loss or corruption of Customer Data, Speed to Contact will use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Speed to Contact. Speed to Contact shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Customer Data caused by the Customer or any third party.
3.4 Security Event. Speed to Contact will promptly inform Customer of any known or reasonably suspected security breach or unauthorized disclosure of Customer Data or Customer’s Confidential Information (“Security Event”). If there is a Security Event, Speed to Contact shall (a) take all reasonable steps to mitigate any potential damages, and (b) promptly respond to reasonable security-related inquiries from Customer and take all reasonable steps to identify, investigate, and resolve applicable security issues on a timely basis commensurate with the level of risk involved.
3.5 Privacy Policy. By accessing or using the Ricochet360 Platform, Customer acknowledges that Customer has read, understands, and agrees to be bound Speed to Contact’s privacy notice located at https://ricochet360.com/privacy-policy/ (“Privacy Policy”), which is hereby incorporated into and made a part of this Agreement.
3.6 International Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or another jurisdiction outside of the United States, Customer must notify Speed to Contact in writing, and the parties will agree to a Data Processing Addendum with additional provisions relating to privacy and data protection as required by Applicable Laws, which will be incorporated into and made a part of this Agreement.
4. MAINTENANCE AND SUPPORT.
4.1 Service Level Agreement. Speed to Contact will provide Customers with maintenance and support services for the Ricochet360 Platform in accordance with and subject to the service level agreement located at https://ricochet360.com/sla/ (“SLA”), which is hereby incorporated into and made a part of this Agreement.
4.2 Limitations. Speed to Contact will have no obligation of any kind to provide support of any kind for problems in the operation or performance of the Ricochet360 Platform to the extent caused by any of the following: (a) non-Speed to Contact software or hardware or use of the Ricochet360 Platform in conjunction therewith (other than third party software provided by Speed to Contact as necessary to facilitate the provision of the Ricochet360 Platform); or (b) Customer’s use of the Ricochet360 Platform other than as authorized in this Agreement. If Speed to Contact determines that it is necessary to perform maintenance services for a problem in the operation or performance of the Ricochet360 Platform that is caused by either of the above problems, then Speed to Contact will notify Customer and have the right to invoice Customer for all such maintenance services performed by Speed to Contact and approved in advance by Customer.
5. FEES AND PAYMENT.
5.1 Fees. By subscribing to the Ricochet360 Platform, the Customer agrees to pay Speed to Contact all User Fees, Usage Fees, and any other fees and costs set forth in the Service Order for the applicable Subscription Period (collectively, “Fees”). All invoices and payments must be made in United States Dollars. All Fees are non-refundable
5.2 Calculation of Fees. The Ricochet360 Platform is provided on a subscription basis with Fees calculated based on the total number of Authorized Users (“User Fees”) and Fees calculated based on the Customer’s Account activity and usage of certain features of the Ricochet360 Platform (“Usage Fees”). The customer is responsible for and obligated to pay for all Fees incurred on the Customer’s Account. Speed to Contact reserves the right to revise fees associated with the Ricochet360 Platform at any time upon not less than thirty (30) days prior notice to Customer, with such revised Fees to be applied to Customer upon Customer’s next monthly, quarterly, or annual Subscription Period (as the case may be) and with respect to any additional Authorized Users added to Customer’s Account during the then-current monthly, quarterly, or annual Subscription Period
5.3 Payment. Speed to Contact will issue invoices on a monthly basis in accordance with the Service Order. Generally, User Fees for the next month will be charged in advance, and any Usage Fees incurred during the prior month will be charged in arrears on the next billing cycle. Speed to Contact will, and Customer authorized Speed to Contact to, automatically charge Customer’s selected Payment Method for all Fees when due. All payment obligations are non-cancelable
5.4 Payment Method. Customer must provide a payment method during the sign-up process at http://ahoy.ricochet.me (Customer’s “Payment Method”). By providing Customer’s Payment Method information (e.g. credit card information or bank account information), Customer expressly authorizes Speed to Contact to charge Customer for all Fees incurred in connection with this Agreement. Speed to Contact uses a third-party service provider that specializes in payment processing (“Payment Processor”). The customer will provide its Payment Method information directly to the Payment Processor, who stores and maintains Customer’s Payment Method in accordance with accepted security protocols, subject to the Payment Processor’s security and privacy policies. Speed to Contact does not keep or store Customer’s Payment Method information. Speed to Contact periodically communicates with the Payment Processor to request the processing of charges for the Fees in accordance with this Agreement. The Payment Processor then attempts to process the charges and, if successful, deposits the proceeds into Speed to Contact’s account. The customer is solely responsible for any overdraft or other bank fees charged to the Customer’s Payment Method. The customer is required to keep its Payment Method information current, complete, and accurate (such as a change in billing address, credit/debit card number, expiration date, etc.)
5.5 Taxes. The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). The customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on Speed to Contact’s net income. Taxes shall not be deducted from the payments to Speed to Contact, except as required by Applicable Laws, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, Speed to Contact receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
5.6 Overdue Fees. If Customer’s Payment Method is rejected or any Fees are not received from Customer by the due date, then at Speed to Contact’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Applicable Laws, whichever is lower, from the date such payment was due until the date paid. Speed to Contact shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, in-house counsel costs, expenses, and costs) incurred in attempting to collect payment from Customer.
5.7 Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify Speed to Contact in writing and provide reasonably detailed support of any invoice dispute within seven (7) days of Customer’s receipt of such invoice. If the Customer fails to do so, the Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section shall be deemed to waive the Customer’s obligation to timely pay any undisputed amounts due.
5.8 Suspension. Except with respect to any Fees disputed in writing in good faith by Customer, if any Fees are seven (7) or more days overdue, Speed to Contact may, without limiting Speed to Contact’s other rights and remedies, suspend Customer’s access to and use of the Ricochet360 Platform until such amounts are paid in full.
5.9 Audit Rights. Speed to Contact (or its authorized representatives) will have the right to examine, review, and audit Customer’s compliance with this Agreement at any time during the Subscription Period and for a period of one (1) year thereafter. The customer shall cooperate following any reasonable request by Speed to Contact in connection with such audit. If Speed to Contact determines that Customer has allowed access to the Ricochet360 Platform other than as permitted under this Agreement or has otherwise violated this Agreement, and as a result, additional Fees are owed to Speed to Contact, Speed to Contact shall invoice Customer for such discrepancies and such Fees shall be payable pursuant to this Agreement. The results of any audit shall not limit any other rights or remedies of Speed to Contact.
6. TERM AND TERMINATION.
6.1 Subscription Period; Automatic Renewal. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, will remain in force and effect until the completion of the Service Order Term Length set forth in the applicable Service Order (the “Initial Subscription Period”). Thereafter, this Agreement will automatically renew on a monthly, quarterly, or annual basis (the “Renewal Date”) depending on the Service Order Term Length chosen by Customer when subscribing to the Ricochet360 Platform. The Initial Subscription Period and any subsequent renewal term(s) are individually and collectively referred to as the “Subscription Period.” The pricing and related terms applicable during any renewed Subscription Period will be the applicable rates then in effect on the Renewal Date or as otherwise set forth in a new Service Order.
6.2 Minimum Term. By subscribing to the Ricochet360 Platform, the Customer acknowledges and agrees to be bound to a minimum Subscription Period of at least (a) the Initial Subscription Period if subscribed on a quarterly or annual basis, or (b) two (2) months if subscribed on a monthly basis.
6.3 Termination. Either Party may terminate this Agreement if the other Party: (a) is in material breach of this Agreement and fails to cure such breach within ten (10) days following written notice by the non-breaching Party (including details sufficient to identify the material breach) or (b) ceases its business operations or becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and such proceedings are not dismissed within sixty (60) days. The customer may only cancel its subscription to the Ricochet360 Platform by notifying Speed to Contact at billing@ricochet360.com at least thirty (30) days prior to the Renewal Date. Upon timely notice of cancellation, termination of this Agreement will be effective at the expiration of the Subscription Period then in effect. No cancellations are permitted during the applicable Subscription Period.
6.4 Effect of Termination. Upon expiration or termination of this Agreement, Speed to Contact may immediately deactivate Customer’s Account and terminate Customer’s access to and use of the Ricochet360 Platform; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay Fees accrued or payable to Speed to Contact or of any liability pertaining to Customer’s use of the Ricochet360 Platform prior to such expiration or termination.
6.5 Survival. Sections 2.1, 2.4, 3.1, 5.6, 5.9, 6.5, 6.6, 7, 8, 9, 10, and 14 of this Agreement, as well as any other terms of this Agreement that expressly extend or by their nature, should extend beyond the termination of this Agreement, will survive and continue in full force and effect after any termination of this Agreement.
6.6 Exporting Customer Data. If Customer is in material compliance with this Agreement, during any Subscription Period and for the period thirty (30) days after termination or expiration of this Agreement, Customer may request its Customer Data used in connection with the Ricochet360 Platform in Speed to Contact’s standard (.csv) format. Custom exports of Customer Data may incur additional fees. Speed to Contact will not export Customer Data unless any additional Fees are paid in advance. After the termination or expiration of this Agreement (and the applicable waiting period), Speed to Contact will have no obligation to maintain or make available any Customer Data and may thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in Speed to Contact systems or otherwise in Speed to Contact possession, custody, or control.
7. CONFIDENTIALITY.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), 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. Without limiting the generality of the foregoing, Customer’s Confidential Information includes Customer Data; Speed to Contact’s Confidential Information includes the Ricochet360 Platform and STC Technology; and the Confidential Information of each Party includes, but is not limited to, non-public business and marketing plans, technology and technical information, product plans and designs, financial or economic data, and business methods and processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
7.2 Ownership of Confidential Information. Discloser shall retain all right, title, and interest in and to its Confidential Information. Neither the execution and delivery of this Agreement, nor the furnishing of any Confidential Information shall be construed as granting to Recipient either expressly, by implication, estoppel, or otherwise, any license under any intellectual property or proprietary rights now or hereafter owned or controlled by Discloser, nor any right to use, copy, sell, develop, or exploit the Confidential Information made available to Recipient, except to fulfill the purpose of this Agreement.
7.3 Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will (a) use Discloser’s Confidential Information only for the purposes of this Agreement and will 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), and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, representatives, agents, contractors, and subcontractors (“Representatives”) who have a need to know such Confidential Information for purposes consistent with this Agreement and are bound by confidentiality obligations with Recipient that are at least as restrictive as those contained herein. The recipient may also disclose Confidential Information in any due diligence of Recipient in connection with a merger, acquisition, sale of all or substantially all of such Party’s assets or substantially similar transaction, provided that such disclosure is made pursuant to a written confidentiality agreement with terms that are at least as restrictive as those contained herein, and provided further that. The recipient may not disclose Discloser’s Confidential Information, in any event, to any competitor of Discloser without Discloser’s prior written consent. If the Recipient becomes aware of or has reasonable grounds to suspect, any unauthorized disclosure of Discloser’s Confidential Information, Recipient shall immediately notify Discloser in writing.
7.4 Compelled Disclosure. The recipient may disclose Disclosure’s Confidential Information to the extent required or compelled by Applicable Laws to do so, provided that (a) Recipient gives Discloser prior written notice of such compelled disclosure (unless notice is prohibited by Applicable Laws) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure, and (b) if Recipient is compelled by Applicable Laws to disclose Discloser’s Confidential Information, Recipient shall furnish only that portion of Discloser’s Confidential Information which is legally required to be disclosed and shall exercise its commercially reasonable efforts to obtain assurances that the Confidential Information will be treated in confidence or cooperate with Discloser to compile and provide secure access to such Confidential Information.
7.5 Equitable Relief. Recipient acknowledges that the remedy at law for breach of confidentiality under this Agreement may be inadequate and that, in addition to any other remedy Discloser may have, Discloser will be entitled to seek equitable relief, including without limitation, temporary restraining orders or preliminary or permanent injunctions (without the requirement of posting a bond or other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of confidentiality by Recipient or any of its Representatives and to enforce this Agreement in addition to any other remedy to which Discloser is entitled at law or in equity.
7.6 Return of Confidential Information. The recipient must return or destroy (in Discloser’s sole discretion and direction) any Confidential Information disclosed to it and all copies thereof, promptly within ten (10) days following Discloser’s written demand for the return or destruction of its Confidential Information.
8. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE RICOCHET360 PLATFORM AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SPEED TO CONTACT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING OUT OF COURSE OF DEAL OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. SPEED TO CONTACT MAKES NO WARRANTY THAT THE RICOCHET360 PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, THAT ITS PERFORMANCE OR RESULTS ARE GUARANTEED, OR THAT IT WILL UNINTERRUPTED, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SPEED TO CONTACT OR ANY SOURCE, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE RICOCHET360 PLATFORM FEATURES THAT INTEROPERATE WITH THIRD PARTY APPLICATIONS DEPEND ON THE CONTINUING AVAILABILITY OF THOSE THIRD PARTY APPLICATIONS’ APPLICATION PROGRAMMING INTERFACE (“API”), AND THE RICOCHET360 PLATFORM MAY BE IMPACTED, INTERRUPTED, OR MAY CEASE IF ANY THIRD PARTY APPLICATION CEASES TO MAKE ITS API AVAILABLE AT ALL OR ON REASONABLE TERMS OR IF ANY THIRD PARTY APPLICATION EXPERIENCES AN OUTAGE, MALFUNCTIONS, OR CHANGES THEIR SERVICES, PRACTICES, OR FUNCTIONALITY.
9. INDEMNIFICATION.
9.1 Indemnification by Customer. Customer will defend, indemnify, and hold harmless Speed to Contact and its parents, subsidiaries, affiliates and its and their directors, officers, employees, agents, successors and assigns (“Speed to Contact Indemnified Parties”), from and against any third party claims, disputes, demands, actions, suits, proceedings, losses, damages, and other liabilities, costs and expenses (including reasonable attorneys’ fees), arising out of or related to (a) Customer’s material breach of this Agreement, (b) Customer’s access to or use of the Ricochet360 Platform other than in accordance with this Agreement, or (c) Customer Data, as provided to Speed to Contact or from Speed to Contact’s permitted use of such Customer Data, infringes or misappropriates the rights of any third party, including but not limited to intellectual property rights. This section states Customer’s sole liability with respect to, and the Speed to Contact Indemnified Parties’ exclusive remedy against Customer for, any such claims.
9.2 Indemnification by Speed to Contact. Speed to Contact will defend, indemnify, and hold harmless Customer and its parents, subsidiaries, affiliates and its and their directors, officers, employees, agents, successors and assigns (“Customer Indemnified Parties”), from and against any third party claims, disputes, demands, losses, damages, and other liabilities, costs and expenses (including reasonable attorneys’ fees), arising out of or related to (a) Speed to Contact’s material breach of this Agreement, or (b) the Ricochet360 Platform, as provided by under this Agreement and used in accordance with this Agreement, infringes or misappropriates the rights of any third party, including but not limited to intellectual property rights. Notwithstanding the foregoing, Speed to Contact has no obligation to indemnify a claim if it arises from (i) Customer Data, (ii) Customer’s unauthorized modification or use of the Ricochet360 Platform, (iii) Speed to Contact’s compliance with any design or specifications provided by Customer, or (iv) otherwise relating to Customer’s acts or omissions not in accordance with, or in breach of, the terms of this Agreement. If the use of the Ricochet360 Platform is, or in Speed to Contact’s reasonable opinion is likely to be, the subject of an infringement claim, then Speed to Contact may, at its sole option and expense: (x) obtain the right for Customer to continue using the Ricochet360 Platform; (y) provide a non-infringing functionally equivalent replacement; or (z) modify the Ricochet360 Platform so that it is no longer infringing while maintaining substantially equivalent functionality. If Speed to Contact, in its sole and reasonable judgment, determines that none of the foregoing options are commercially reasonable, then Speed to Contact may suspend or terminate this Agreement, in which case Speed to Contact’s sole liability (in addition to its indemnification obligations above) will be to provide Customer with a prorated refund of prepaid but unused fees applicable to the remaining portion of Customer’s current Subscription Period. This section states Speed to Contact’s sole liability with respect to, and the Customer Indemnified Parties’ exclusive remedy against Speed to Contact for, any such claims.
9.3 Indemnification Procedures. The party seeking indemnification (“Indemnified Party”) must provide prompt written notice to the other Party (“Indemnifying Party”) concerning the existence of and indemnifiable claim and provide Indemnifying Party with all documents, information, and assistance reasonably requested and fully cooperate with Indemnifying Party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a Party’s right to indemnification and shall affect Indemnifying Party’s obligations under this Agreement only to the extent that Indemnifying Party’s rights are materially prejudiced by such failure or delay. Indemnifying Party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring Indemnified Party to admit liability or make any financial payment shall require Indemnified Party’s prior written consent, not to be unreasonably withheld or delayed. Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such claims.
10. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY THEORY OF LIABILITY AND HOWEVER CAUSED, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT SUCH PARTY WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE RICOCHET360 PLATFORM EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS SECTION ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11. ACCEPTABLE USE.
11.1 Compliance with Applicable Laws. Each Party, at its own expense, agrees to comply with and will be solely responsible for ensuring its Representatives comply with, all Applicable Laws. Each Party agrees to furnish the other Party with any information required to enable the other Party to comply with any Applicable Laws related to this Agreement.
11.2 Acceptable Use Policy. By accessing or using the Ricochet360 Platform, Customer acknowledges that Customer has read, understands, and agrees to be bound Speed to Contact’s acceptable use policy located at https://ricochet360.com/acceptable-use/ (“Acceptable Use Policy”), which is hereby incorporated into and made a part of this Agreement.
11.3 Violations by Customer. If Speed to Contact determines, in its sole discretion, that Customer’s actions or omissions in connection with its access to or use of the Ricochet360 Platform violates the Acceptable Use Policy or any Applicable Laws, Speed to Contact may suspend Customer’s access to the Ricochet360 Platform until Speed to Contact is reasonably satisfied that the violation is cured or terminate this Agreement in accordance with this Agreement.
12. EXPORT COMPLIANCE. The Ricochet360 Platform may be subject to export laws and regulations of the United States and other jurisdictions. The customer represents that neither it nor any of its Authorized Users are named on any U.S. government denied-party list. Customer and its Authorized Users will not access or use the Ricochet360 Platform in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. Customer and its Authorized Users will not use the Ricochet360 Platform to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business.
13. USE OUTSIDE OF THE UNITED STATES. The Ricochet360 Platform is controlled and operated by Speed to Contact from its offices in the United States. Except as explicitly set forth herein (and in the Data Processing Agreement if such agreement is entered into by the parties), Speed to Contact makes no representations that the Ricochet360 Platform is appropriate for use in other jurisdictions. Those who access or use the Ricochet360 Platform from other jurisdictions do so at their own risk and are responsible for compliance with Applicable Laws.
14. GENERAL PROVISIONS
14.1 Governing Law; Venue; Waiver of Jury Trial. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law principles. If for any reason an action proceeds in court rather than in arbitration, it must be brought exclusively in a state or federal court of competent jurisdiction located in Los Angeles County, California, and each Party irrevocably consents to the exclusive personal jurisdiction and venue therein. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
14.2 Mandatory Arbitration; Class Action Waiver. The Parties will use reasonable efforts to resolving any dispute between them in good faith prior to initiating legal action. Except for actions (i) to protect a Party’s intellectual property, or (ii) to enforce an arbitrator’s decision hereunder, Any dispute, CLAIM, or controversy arising out of or related to this Agreement must be submitted to and resolved exclusively by confidential binding arbitration before a single neutral arbitrator administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) in accordance with its then-prevailing Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). If the Parties cannot agree upon the selection of an arbitrator, then the Parties agree that JAMS will appoint an arbitrator experienced in the enterprise software industry. The arbitration will be conducted in English. The location of arbitration will be Los Angeles County, California unless otherwise agreed by the Parties. Each Party agrees that the arbitration will be conducted in its individual capacity only and not as a class, consolidated, or other representative action. Each Party expressly waives its right to file a class action or seek relief on a class basis, and no arbitrator may consolidate more than one person or entity’s claims or otherwise preside over any form of a representative or class proceeding unless otherwise agreed by the Parties. The arbitration may be initiated by any Party by giving to the other Party written notice requesting arbitration, which notices shall also include a statement of the claims asserted and the facts upon which the claims are based. The arbitrator shall not have any power to alter, amend, modify, or change any of the terms or provisions of this Agreement. Except as prohibited in this Agreement, the arbitrator shall have the authority to award any remedy or relief otherwise available in a court of law. The arbitrator must provide detailed written findings of fact and conclusions of law in support of any award. Any arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Any Party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. Except as may be required by law or to enforce an arbitration award, neither Party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. Notwithstanding the foregoing, either Party may, without waiving any remedy under this Agreement, seek equitable or injunctive relief as permitted by this Agreement or under Applicable Laws from any court of competent jurisdiction. The Parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
14.3 Legal Notices. All notices required or permitted to be given under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) twenty-four (24) hours after having been sent via electronic mail or when receipt is acknowledged by the intended recipient, whichever is earlier; sent to the contacts and addresses set forth on the Service Order, or as designated from time to time in writing by the Parties.
14.4 Publicity. Customer agrees that Speed to Contact may use Customer’s name and logo in Speed to Contact’s online customer list and in print and electronic marketing, publicity, and other promotional activities, subject to Speed to Contact’s compliance with applicable trademark usage guidelines or other instructions provided by Customer in writing regarding the proper use of its marks. Customer shall not use Speed to Contact’s name or trademarks for any purpose, except Customer’s disclosure that it is a Speed to Contact customer, without the prior written approval of Speed to Contact.
14.5 Force Majeure. Neither Party will be in default for any delay or failure to perform any obligation under this Agreement or any Service Order, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation civil disturbances, labor disputes, strikes, government actions, war, terrorism, failure of third party networks or services or the public Internet, power outages, fire, flood, acts of God, or other similar occurrences (each, a “Force Majeure Event”); provided that the party affected by such Force Majeure Event (a) is without fault in causing such delay or failure, (b) notifies the other Party of the circumstances causing the Force Majeure Event, and (c) takes commercially reasonable steps to eliminate the delay or failure and resume performance as soon as practicable.
14.6 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party has the authority to enter into any contract, incur any liability, make any representation, or otherwise act on behalf of the other Party unless expressly agreed to in a writing signed by both Parties. Each Party is responsible for its respective Representatives, and the foregoing’s compliance with this Agreement.
14.7 Headings. The headings in this Agreement are for reference only and shall not affect the construction or interpretation of this Agreement.
14.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting the generality of the foregoing, a Customer’s Authorized Users are not third-party beneficiaries to Customer’s rights under this Agreement.
14.9 No Waivers. The failure or delay by either Party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of that or any other right or provision of this Agreement. The waiver of any such right or provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of each Party.
14.10 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise of either Party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or other rights and remedies available at law or in equity.
14.11 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, under present or future law, such provision will be modified by the court to the least degree necessary to remedy such invalidity, illegality, or unenforceability and interpreted so as best to accomplish the objectives of the original provision and original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement will continue in full force and effect.
14.12 Assignment; Binding Effect. This Agreement is not transferable or assignable by either Party, whether in whole or in part, whether by operation of law or otherwise, for any purpose without the other Party’s prior written consent and any attempt to do so is void in each instance. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Service Orders), without consent of the other Party, to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of such Party’s assets or substantially similar transaction, provided, however, that Customer cannot assign this Agreement to a competitor or an existing customer of Speed to Contact without Speed to Contact’s prior written consent. This Agreement will bind and inure to the benefit of the Parties and their respective heirs, administrators, executors, successors, and permitted assigns.
14.13 Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered (including by electronic transmission), shall be deemed an original, and all of which together shall constitute one and the same document. The Parties agree to be legally bound to their electronic signatures and that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purpose of validity, enforceability, and admissibility.
14.14 Entire Agreement. This Agreement, including all attachments, exhibits, addendums, and any Service Orders related hereto, constitutes the entire agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior and contemporaneous discussions, representations, proposals, negotiations, understandings, and agreements between the Parties, whether written or oral, concerning this subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Service Order, the terms of the Service Order will control. No terms or conditions stated in a Customer purchase order or other documentation (excluding Service Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
15. CHANGES TO THIS MSLA.
15.1 Prior Notice of Changes. Speed to Contact may update this MSLA from time to time by providing Customers with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in the Customer’s Account portal or via an email to the email address owner of Customer’s Account. Except as otherwise specified by Speed to Contact, updates will be effective upon the effective date indicated at the top of this MSLA. The updated version of this MSLA will supersede all prior versions.
15.2 Customer’s Acceptance. Following such notice of changes, Customer’s continued access or use of the Ricochet360 Platform on or after the effective date of the changes to the MSLA constitutes Customer’s acceptance of any updates. If the Customer does not agree to any updates, the Customer should stop using the Ricochet360 Platform.
15.3 Exceptions. Speed to Contact may not be able to provide at least thirty (30) days prior written notice of updates to this MSLA that result from changes in the Applicable Laws.
The Parties agree to the terms and conditions of this Agreement by acceptance of the Service Order.
Ricochet360 Master Subscription and License Agreement – v1 – 9.1.2020
