This Service Agreement (the “Agreement”) is entered into on the date of purchase (the “Effective Date”) by and between Stormpulse, Inc. dba Riskpulse with offices at 3300 N. Interstate Highway 35, Floor #7, Austin, TX 78731 (“Riskpulse”) and the subscriber (“Customer”). The parties agree as follows:
Riskpulse is a provider of a web-based subscription service designed to provide its users with risk and asset maps, reports, features and related alerts (collectively, the “Service”). Customer desires to obtain and Riskpulse desires to provide Customer with access to the Service, pursuant to this Agreement.
2.1 Provision of Service: Subject to the terms and conditions of this Agreement, including without limitation Customer’s payment of all of the fees due hereunder, Riskpulse will provide Customer with access to the Service during the term of this Agreement. Customer may internally use the Service solely for its intended purpose in accordance with this Agreement.
2.2 Authorized User Accounts: Customer may establish accounts (“Accounts”) for Customer’s employees or independent contractors to use the Service on behalf of Customer (“Authorized Users”). Authorized Users shall at all times abide by the terms set forth herein. Customer shall immediately notify Riskpulse in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement. Customer shall be liable for any breach of this Agreement by an Authorized User.
2.3 Account Protection: Customer and all Authorized Users shall protect the confidentiality of all Account information, including usernames and passwords. In the event that an Authorized User becomes aware that the security of such party’s login information has been breached, the party shall immediately notify Customer and Customer shall immediately de-activate such Account or change the Account’s login information.
2.4 Customer Assistance and Materials: Customer shall provide Riskpulse with all information, assistance, and materials as reasonably required for Riskpulse to activate and operate the Service for Customer pursuant to this Agreement, including without limitation location and sensitivity information relevant to Customer, and contact information to enable the alerts features of the Service. Customer grants and agrees to grant to Riskpulse a non-exclusive license to use, reproduce, display and distribute such information and materials in connection with the provision of the Service for Customer. Customer shall indemnify, defend and hold Riskpulse harmless from and against any and all third party claims or liabilities resulting from Riskpulse’s use of such information and materials pursuant to the terms of this Agreement.
2.5 Technical Contact: Customer shall designate one technical contact as the responsible party for communication with Riskpulse during provision of the Service. Customer may change such contact upon written notice to Riskpulse.
2.6 Infrastructure: Customer acknowledges that Riskpulse may host the Service using its own infrastructure or it may engage a third party to host the Service on its behalf.
2.7 Maintenance: Updates to the Service will be provided in Riskpulse’s discretion at no charge to Customer. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by Riskpulse. During such time, the Service may be unavailable. Emergency maintenance may be required at other times.
2.8 Support: Riskpulse will provide Customer with a reasonable amount of email support regarding use of the Service, but makes no guarantees as to response times.
3. FEES AND PAYMENT
3.1 Fees: Customer shall pay Riskpulse for use of the Service in accordance with the fee schedule attached hereto as Schedule A. All fees are due and payable in U.S. dollars. If applicable, Customer authorizes Riskpulse to charge the credit card (or other electronic payment method) on file for all fees and hereby agrees not to dispute such charges with the applicable card company.
3.2 Taxes: All fees are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes either directly or to Riskpulse, as required by applicable law or regulation.
3.3 Late Payments: If payment is not made within fifteen (15) days after the respective due date, Riskpulse may charge Customer a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
4. PROPRIETARY RIGHTS
4.1 Service Ownership: Riskpulse shall own all right, title, and interest in and to Service, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Customer agrees to assign all right, title, and interest it may have in the foregoing to Riskpulse.
4.2 Restrictions: Customer and any Authorized Users may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service; (iii) use the Service for any illegal purpose or to violate any applicable law; (iv) use the service to violate any law or regulation, or (v) use the Service in a service bureau or any other manner to provide services for a third party. Neither Customer nor an Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within, the Service. Except for the express rights granted herein, Riskpulse does not grant any other licenses, whether express or implied, to any Riskpulse software, services, or intellectual property.
4.3 Data Ownership, License, and Access: Customer shall own all right, title, and interest in and to any data that is collected by Riskpulse from Customer or Authorized Users in connection with their use of the Service (“Data”). Customer grants and agrees to grant to Riskpulse a perpetual, non-exclusive, transferable, sublicensable, royalty-free license to use such Data in order to provide the Service to Customer and the Authorized Users and as necessary to monitor and improve the Service. Additionally, Customer agrees that Riskpulse may use the Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that Riskpulse collects or generates Blind Data, such Blind Data will be owned solely by Riskpulse and may be used for any lawful business purpose without a duty of accounting to Customer, provided that such data is not personally identifiable and does not identify the source of such data. It is Customer’s sole responsibility to back-up its Data during the Term and Customer agrees and acknowledges that post-termination or expiration in may not have access to the Data via the Service.
4.4 Confidentiality: Customer acknowledges that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by Riskpulse (“Riskpulse Confidential Information”) constitutes valuable proprietary information and trade secrets of Riskpulse. Riskpulse acknowledges that the Data provided to Riskpulse by Customer (“Customer Confidential Information”) constitutes valuable proprietary information and trade secrets of Customer. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
5. ACKNOWLEDGMENTS, WARRANTIES, LIMITATIONS OF LIABILITY AND INDEMNITY
5.1 Customer Acknowledgements: Customer acknowledges that the Service is not and is not intended to be used as a tornado, lightning, or other severe weather detection or life-saving system, and that Riskpulse does not guarantee the timeliness of any alert or notification to be rendered via the Service. Customer further acknowledges that Riskpulse gathers data from and relies upon third party data sources that may have the right to unilaterally terminate or revoke access to such data, or portions thereof, without notice, that Riskpulse makes no representation or warranty concerning the accuracy or ongoing availability of such data, that changes in such data sources may affect the availability of the Service, and that Customer’s payment obligations hereunder are not contingent upon the continued availability of any such data.
5.2 Warranty and Disclaimers: Riskpulse will use commercially reasonable efforts to make the Service reasonably available for use by Customer during the Term. EXCEPT FOR THE FOREGOING, RISKPULSE DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICE OR ANY SERVICES AND/OR SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.
5.3 Limitations of Liability: EXCEPT FOR LIABILITY ARISING FROM SECTION 4.4 (CONFIDENTIALITY) OR 5.5 (CUSTOMER INDEMNITY), (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING; AND (B) IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF RISKPULSE FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM.
5.4 Allocation of Risk: The warranty disclaimers and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy. Customer and Riskpulse each acknowledge and agree that the limitation of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Customer’s use of the Service and, but for this provision, Riskpulse would not have made the Service available to Customer at the prices contemplated under this Agreement.
5.5 Customer Indemnity: Customer shall indemnify, defend, and hold harmless Riskpulse and its directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Service by Customer or any Authorized User, (b) use of the Service by Customer or any Authorized User in violation of this Agreement; or (c) any content uploaded or posted by Customer or an Authorized User; or (d) any activities of Customer or an Authorized User through the use the Site.
6.1 Term: This Agreement will commence on the Effective Date and will continue for a period of one (1) month for monthly subscriptions, automatically renewed on a monthly basis, or one (1) year for annual subscriptions, automatically renewed on an annual basis (the “Term”), unless one party terminates the Agreement.
6.2 Termination and Suspension: In the event that either party is in breach of this Agreement, and the non-breaching party does not cure such breach within thirty (30) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement by sending written notice to the breaching party. Should Customer not pay amounts when due, or should Customer or any Authorized User violate this Agreement, Riskpulse may also (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service. In addition, Riskpulse may terminate this Agreement for any reason upon thirty (30) days notice to Customer.
6.3 Effect of Termination: Upon termination of this Agreement, Customer and any Authorized Users must immediately stop using the Service, return or destroy all documentation, and certify such return or destruction in writing. Upon termination of this Agreement, Sections 3 (with respect of fees owed prior to termination), 4, 5, 6.3, and 7 shall survive and remain in effect.
7.1 Independent Contractor: In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
7.2 Export and Other Restrictions: Customer agrees not to export or re-export any software included within the Service, either directly or indirectly, without both parties’ written consent and any required license from the appropriate governmental agency. The Service and any related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
7.3 Force Majeure: Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
7.4 Assignment: Neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent, provided that no consent shall be required in connection with an assignment to an affiliate or in connection with a merger, acquisition or sale of assets, reorganization, or similar transaction. Any assignment in contravention of this subsection shall be void.
7.5 Governing Law and Venue: This Agreement shall be governed by the laws of the State of Texas(excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in [Austin, Texas], United States and the parties agree to submit to the exclusive personal jurisdiction of such courts. If Customer is located outside of the United States, and except for any claims for temporary or permanent injunctive relief, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”) in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The appointing authority shall be the American Arbitration Association. The place of arbitration shall be [Austin, Texas]. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
7.6 Foreign Corrupt Practices Act: In conformity with the United States Foreign Corrupt Practices Act and with Riskpulse’s established corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; nor offer a gift, promise to give, or authorize the giving of anything for value for the purpose of influencing any act or decision of an official of any government or the United States Government (including a decision not to act) or inducing such an official to use his or her influence to affect any such governmental act or decision in order to assist Riskpulse or Customer in obtaining, restraining, or directing any business.
7.7 Miscellaneous: This Agreement constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. Any amendments to this Agreement shall only be valid if in writing and signed by an executive of both parties. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. Nothing contained in any purchase order or other document shall in any way modify this Agreement or add any additional terms or conditions. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.