Terms & Conditions

Applicable Terms and Conditions

These Applicable Terms and Conditions supplement the Commercial Terms executed between Client and Company and form an integral part of the Agreement between Company and Customer.

 

1. Definitions

In addition to terms defined herein and within the Commercial Terms, the following capitalized terms shall have the meanings set forth below.

a. “Agreement” means the Commercial Terms, these Applicable Terms and Conditions, the attached appendices, Statement(s) of Work, and any other documents made a part hereof or incorporated by reference, including any written amendments.

b. “Client System” means Client’s information technology resources and systems as well as third-party hardware and software used to operate or interface with such System.

c. “Consulting Services” means additional services described in a SOW pertaining to set-up, configuration, implementation, integration, onboarding, consulting, training, and/or other technical services.

d. “Documentation” means the operating manuals, including a description of the functions performed by the Software, user instructions, technical literature and all other related materials supplied to Client by Company to facilitate the use of the Software, which may be revised, updated or supplemented by Company from time to time.

e. “Error” means a reproducible failure of the Software to materially perform in accordance with the Documentation.

f. “Licensed Users” means Client’s personnel who access the Software.

g. “Services” means, collectively, Client’s subscription to access the Software, Support & Maintenance Services set forth in Appendix A, additional services described in a SOW or amendment to this Agreement, as well as any other services provided by Company.

h. “Software” means Company’s hosted software platform, including Updates, accessed by Client as part of the Services.

i. “SOW” means a Statement of Work executed by the Parties and governed by this Agreement.

j. “Subscription Fee” means the license subscription fee paid by Client to access the Software and includes Support & Maintenance Services.

k. “Support & Maintenance Services” means Support & Maintenance Services described in Appendix A pertaining to Error reporting, response and resolution procedures, Software maintenance, and Uptime Assurance.

l. “Updates” means new version release, functional enhancements, improvements, modifications, fixes, patches, error corrections, repairs, and/or replacements to the Software made generally available to and implemented by Company on behalf of its clients. The content and timing of all Updates shall be done in Company’s sole discretion.

 

2. Subscription & Services

a. Software Access. This Agreement sets forth the subscription terms for Client’s access to the Software hosted by Company.

b. Single Sign-On Access. The Software may be configured to allow Client and its Licensed Users to access it via a Single Sign-On or SSO.

c. Consulting Services Associated with Software Access. Upon Client’s request, Company may provide Consulting Services associated with Client accessing the Software such as set-up, configuration, implementation, integration, onboarding, consulting, and/or training. A SOW shall set forth the Consulting Services to be provided by Company and associated with Client’s access to the Software as well as invoicing and payment terms for Consulting Services, if applicable.

d. Support & Maintenance Services. Company will provide Support & Maintenance Services associated with Client accessing the Software including Error reporting, response and resolution procedures, Software maintenance, and Uptime Assurance. Appendix A sets forth the Support & Maintenance Services associated with Client accessing the Software during the Term.

3. Invoicing & Payment

a. Invoicing & Payment. Company will invoice Client consistent with the Payment Terms set forth in the Commercial Terms. Payment shall be made in US currency (USD). The invoice will also include reimbursement for out-of-pocket travel-related expenses incurred by Company, if any. If applicable, Company will invoice Client for fees for Consulting Services under the applicable SOW consistent with the invoicing terms thereto. If Client does not timely pay Company the entire invoice amount, Client agrees to pay Company one and a half percent (1.5%) interest per month, compounded monthly, of the unpaid balance. Client shall reimburse Company for all reasonable costs and expenses incurred, including attorneys’ fees, collecting unpaid invoice amounts.

b. Taxes. Fees are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (“Taxes”). Client shall be responsible for paying Taxes. If Company has a legal obligation to pay or collect Taxes for which Client is responsible, the appropriate additional amount shall be invoiced to and paid by Client. For clarity, Company is solely responsible for taxes assessable against it based on Company’s income, property, employees, subcontractors, and agents.

4. Termination

a. Termination For Cause. Either Party may terminate this Agreement, in whole or in part, by written notice to the other Party upon the occurrence of any of the following events: (i) the other Party’s material breach of any other term or provision of this Agreement which, if capable of cure, remains uncured for thirty (30) days following written notice by the terminating Party; (ii) the other Party becomes insolvent or makes any assignment for the benefit of its creditors; (iii) any proceeding is instituted by or against the other Party under any bankruptcy or similar laws for the relief of debtors and which is not dismissed within thirty (30) days of being instigated; or (iv) the appointment of any trustee or receiver for any of the other Party’s assets, except if such receiver requests the continuation of this Agreement. In addition, Company may suspend or terminate this Agreement and/or any Services by providing written notice if Client has not tendered payment on an undisputed amount when due within fourteen (14) days after receiving written notice.

b. Effect of Termination. Upon termination or expiration of this Agreement, Client shall immediately cease accessing the Software and promptly return to Company or destroy Documentation, and any and all copies thereof, and certify the same to Company in writing within ten (10) days of such termination or expiration. Any provision of this Agreement related to confidentiality or security of Confidential Information, ownership and proprietary rights, indemnification, limitation of liability, or which by its terms or nature provides for survival shall survive the termination of this Agreement.

 

5. Subscription License & Proprietary Rights

a. License Grant. Subject to the terms and conditions in this Agreement and receipt of all applicable fees by Company, Company grants Client a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Software and Documentation solely for Client’s business purposes during the Term. Access and use of the Software shall be web-enabled access only, and nothing in this Agreement shall entitle Client or any Licensed User to the object or source code of the Software.

b. License Restrictions. Client shall not, nor allow or authorize any third-party, to: (i) reproduce, allow use of, or access the Software, or sell, rent, lease, use in a service bureau, sublicense or otherwise transfer or assign its rights to access and use the Software, in whole or in part, to a third-party; (ii) alter, enhance or otherwise modify or create derivative works of or from the Software; (iii) disassemble, decompile, reverse engineer or otherwise attempt to derive the object or source code of the Software; (iv) remove or destroy any proprietary markings, confidential legends or any trademarks or trade names of Company or its licensors placed upon or contained within the Software or Documentation; or (v) upload, post or transmit into or via the Software any viruses or unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or offensive information of any kind.

c. Use of Client Marks. Client hereby agrees Company may use and display, and grants Company the right to use and display, Client’s name(s), its products and service offerings names, and its and their service marks, trademarks and other indicia of ownership or use (“Client Marks”) as Client may provide from time-to-time within the Software. Company shall observe any reasonable policies communicated to Company when using the Client Marks. Client represents, warrants, and covenants that Company’s use of the Client Marks shall not infringe or misappropriate any intellectual property, proprietary, or privacy rights of any person or entity.

d. Client Property. Client owns all Client data including personal data pertaining to Client’s account, products, materials and intellectual property, whether now existing or hereafter created by Client, including what is used with or in the Software or Services (“Client Property”); provided Client Property shall not include the Software or Services or derivative works thereto.

e. Return of Client Information & Data. Subject to a request by Client during the Term or within thirty (30) days from the end of the Term, Company shall provide Client with a copy of the information and data provided by or on behalf of Client and its Licensed Users for inclusion in, or access from, the Company Software in the Company’s standard format or such other commercially feasible format as the Parties mutually agree. Company shall have no obligation to maintain, store or provide any such information and data to Client after the thirty (30) day period. If the Agreement is terminated for Client’s breach, delivery of the information and data will require Client to remit payment three (3) business days in advance of the delivery based on an estimation of cost, with the balance to be paid in full at the time of delivery of the information and data.

f. Client Provided Information & Data. Client acknowledges Services do not include—and Company has no responsibility or liability with respect to—verifying Client Property provided by Client and/or Licensed Users used with or processed through Software. Client agrees, at its own expense, to defend Company and its officers, directors, employees, representatives, successors and assigns (“Company Indemnitees”) from and against any third-party claims, suits, proceedings, or actions based on an assertion Client Property infringes or otherwise violates any third party’s intellectual property rights, and will indemnify the Company Indemnitees from any losses, damages, liabilities, judgments, fines, penalties, awards, costs or expenses (including reasonable legal fees) arising out of or resulting from such Claims.

g. Software Ownership. All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in the Software, Documentation, Services, any third-party software or any other contents within the Software (other than Client Marks and Client Property), and/or copies or portions of any of the foregoing (collectively the “Delivered Solution”) are and will remain the exclusive property of Company or its licensors, whether or not specifically recognized or perfected under applicable law. If Client or its Licensed Users make any comments, suggestions, designs, features or other ideas for improving the Delivered Solution submitted by Client or its Licensed Users (“Submissions”), Company shall own all rights to the Submissions and Company shall be entitled to use such Submissions for any commercial or other purpose whatsoever without compensation to Client or anyone else. Client will not take any action that jeopardizes Company’s or its licensor’s proprietary rights or acquire any right in the Delivered Solution, except the limited license rights specified herein. Company or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Delivered Solution, including any improvement or development thereof and/or any ideas first reduced to practice. If Client or any third-party engaged by Client is deemed to have any ownership interest or rights in the Delivered Solution, Client shall assign and/or cause such third-party to assign, and Client does hereby irrevocably assign, without royalty, all of such ownership interest and rights to Company.

h. Anonymized Statistics. Company reserves the right to monitor Client's use of Services and collect and compile statistics based on Client data input in the Software, which data shall be anonymized (“Anonymized Statistics”) and therefore not compromise Client Confidential Information given it will not contain personally identifiable information. Client acknowledges Company shall retain all rights, title and interest in and to Anonymized Statistics, which Company may make publicly available in compliance with all applicable data privacy laws.

i. Company Privacy Policy & User Agreement. Access to the Software is subject to the Company Privacy Policy, which is accessible at https://www.rippleworx.com/privacy-policy, as well as its User Agreement, which is accessible at https://www.rippleworx.com/user-agreement, as may be updated from time to time.

 

6. Warranty

a. Warranty. Company warrants during the Term of the Agreement that: (i) the Software will materially perform in accordance with the Documentation; (ii) Support & Maintenance Services shall be available and includes Error reporting, response and resolution procedures, Software maintenance, and Uptime Assurance; (iii) Consulting Services shall be performed in a competent and workmanlike manner in accordance with industry best-practice standards; (iv) it has sufficient right, title and interest in and to the Software to license such Software to Client free and clear of all restrictions, liens, and encumbrances that may conflict with or adversely affect Client’s rights under the Agreement; and (v) it will materially comply with all applicable laws in performing its obligations hereunder.

b. Warranty Exceptions. Company shall have no warranty obligations with respect to any failures suffered by the Software to the extent caused by (i) interfacing third-party hardware or software or Client System with the Software unless such is explicitly identified in a SOW as compatible with the Software or (ii) computer programs or code that are not provided by Company (including, without limitation, any computer viruses and other malicious code). Company shall be entitled to payment at its current rates for personnel time spent attempting to identify or correct failures reported by Client for which Company has no obligation under this subsection. In addition, Company shall have no warranty obligations if Client fails to use the Software in accordance with the Documentation, modifies or alters the Software in any way, or is in arrears with respect to its payment obligations.

c. Warranty Remedy. Company’s sole liability and Client’s sole remedy with respect to the foregoing warranties shall be for Company, at its sole option, to either (i) correct any Error (subject to the other Warranty terms herein) and/or provide a Service Credit as provided in Appendix A or (ii) terminate this Agreement and refund to Client a pro rata amount of the prepaid Subscription Fee paid to Company.

d. Warranty Exclusions. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY HEREBY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE, DOCUMENTATION, AND SERVICES PROVIDED HEREUNDER WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.

 

7. Confidentiality

a. Confidential Information. “Confidential Information” is (a) any non-public or proprietary information, including any business or technical information of Client or Company as well as any sensitive information relating to either Party’s products, services, finances, product pricing, marketing plans, business opportunities, trade secrets or personnel, including personally identifiable information or PII; (b) any information of Client or Company that is specifically designated by the disclosing party as confidential or proprietary; (c) any information that is known to the receiving party, or should be known to a reasonable person given the facts and circumstances of the disclosure as being treated as confidential or proprietary by the disclosing party; and (d) the terms and conditions of this Agreement; provided, however, Confidential Information excludes information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party; (iii) the receiving party can demonstrate was developed independently and without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation.

b. Confidential Designation. Company hereby designates the Software, Documentation and Services as Confidential Information. In addition, trade secret information of a Party shall also be designated as Confidential Information for as long as such Information remains a trade secret.

c. Maintaining Confidentiality. Except as expressly permitted under this Agreement and for the duration of this Agreement and a period of two (2) years from the termination or expiration of this Agreement, the recipient of Confidential Information shall, and shall cause its personnel to, treat Confidential Information received as confidential and secret, and not use, disclose or otherwise make available the Confidential Information or any portion thereof to others. Each Party shall exercise no less than reasonable care with respect to the handling and protection of Confidential Information by limiting the use and access of Confidential Information to only those who need access, and such access directly pertains to a business purpose contemplated under this Agreement. Either Party may disclose the terms of this Agreement (1) in confidence, to a Party’s accountants, legal counsel, tax advisors, and other financial and legal advisors, or (2) with obligations of confidentiality comparable to those contained herein, to another entity or person or their legal or financial advisors in connection with a proposed change in control, corporate reorganization, consolidation, merger, acquisition, or sale or transfer of all or substantially all of the assets of such Party.

d. Required Disclosure. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party pursuant to a valid order or requirement of a court, provided the receiving party first gives reasonable written notice to the disclosing party in order to timely contest such order or requirement. Any such disclosure by the receiving party of the Confidential Information of the disclosing party shall, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.

e. Return or Destruction of Confidential Information. Upon written request at any time, Confidential Information will be returned to the disclosing party by the receiving party or destroyed by the receiving party. And if requested by the disclosing party, an authorized representative of the receiving party shall certify in writing on behalf of the receiving party that all such Confidential Information has been returned or destroyed, as applicable. Notwithstanding, the receiving party may retain one (1) copy of the Confidential Information for archival purposes or to defend its work product, provided however, such Confidential Information indefinitely remains subject to the terms herein.

8. Security Protocols

a. Security Safeguards. Company shall implement technical, organizational, and physical safeguards to protect Client Confidential Information processed through the Software from unauthorized or accidental disclosure, access, acquisition, destruction, alteration, misuse, loss, or damage in a manner that meets or exceeds applicable laws and globally recognized industry practices. Company shall also require that such safeguards, including the manner in which Client Confidential Information is accessed, received, used, stored, transmitted, processed, and disclosed, comply with applicable federal and state privacy and data protection laws, as well as applicable regulations and directives. The safeguards implemented by Company shall include: (1) limiting access of Client Confidential Information to individuals that have a need to know and demonstrable basis for such access in order to provide Services; (2) securing business facilities, data centers, servers, backup systems, and computing equipment including, but not limited to, mobile devices and other equipment with information storage capability; (3) implementing network, application, database, and platform security, including firewall protection, antivirus protection, and security patch management; (4) securing information transmission, storage, and disposal; (5) implementing authentication and access controls within media, applications, operating systems, and equipment, including logging of access to or use or disclosure of Client Confidential Information and intrusion detection; (6) using protocols to encrypt Client Confidential Information in transit and at rest, or as otherwise required by applicable law or regulation, and safeguard the security and confidentiality of all encryption keys; (7) implementing ongoing personnel training and awareness regarding industry best security safeguard practices; and (8) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at Company’s sole cost and expense, a corrective action plan to correct any issues reported as a result of the testing.

b. Subprocessors. The Software will process Client Confidential Information as necessary to perform the Services, and as further instructed by Client in using the Services. Client acknowledges Company uses third-party subprocessors (“Subprocessors”) to process Client Confidential Information. Company has undertaken due diligence measures to ensure Subprocessors have the capability to safeguard Client Confidential Information consistent with the confidentiality provisions herein. Company shall also ensure its Subprocessors properly perform its processing obligations and, to the extent a Subprocessor fails to properly perform its obligations or breaches the terms of this Agreement, Company shall be responsible and liable to Client.

c. International Transfers of Client Confidential Information. If Client Confidential Information is transferred, stored, or processed internationally, Company shall use generally accepted industry file transfer protocols and encryption methodologies in compliance with applicable laws.

d. Security Breach Procedures. In the event of a security breach of the Software that compromises Client Confidential Information, Company will provide notice to Client of a confirmed breach as soon as practicable, but in no event more than seventy-two (72) hours upon becoming aware of the same. The notice will state the nature of the breach and what, if any, Client Confidential Information was compromised. Company shall promptly provide any additional information to Client as Company gains additional information regarding the breach, including relevant investigative or forensic reports. Unless otherwise required by law or a governmental entity, Company shall not notify or otherwise publicly disclose the breach unless such notice or public disclosure is approved by Client.

e. Company Security Policy. At Client’s request, Company shall provide Client copies of its data privacy and security policies and procedures that apply to Client Confidential Information. Also at Client’s request, Company will submit written responses to Client questions regarding privacy and information security practices that apply to Client Confidential Information; Company shall submit written responses within twenty-one (21) days of receipt of Client’s request. Significant requests which require the Company to expend time in excess of three hours annual, may be subject to fees at the Company’s then standard processional billing rate.

f. Right of Assessment by Client. Client may, at its expense, conduct a privacy and security assessment of Company’s security systems and methodologies. Such assessment may be conducted on-site by Client personnel or Client’s contracted third-party assessors or through surveys and interviews, at the option of Client. Such assessment may be conducted no more than once per year, or more frequently in the event of a data breach. When an on-site assessment will be conducted, Client shall provide Company with reasonable advance notice of not less than twenty-one (21) days, except in the event of a data breach, in which case advance notice shall be not less than three (3) business days.

g. Client Security Responsibilities. Client is responsible for ensuring (1) the Software is only accessed by Licensed Users authorized by Client and (2) its information transmitted to the Software, including Confidential Information, is done in a manner consistent with generally accepted industry practices. Client shall report suspicious activity, suspected security concerns, or unauthorized use of passwords or access to the Software to the Company Support & Maintenance Services team at support@rippleworx.com.

 

9. Insurance

Company shall carry and keep in full force and effect during the term of the Agreement the following minimum insurance coverages: (i) commercial general liability insurance: each occurrence—one million dollars ($1,000,000), damage to rented premises—one million dollars ($1,000,000), personal and advertising injury—one million dollars ($1,000,000), general aggregate—two million dollars ($2,000,000), and products and completed operations subject to the general aggregate limit—two million dollars ($2,000,000); (ii) automobile liability insurance for hired and non-owned vehicles, combined single limit—one million dollars ($1,000,000); (iii) statutory workers compensation and employer’s liability insurance­—one million dollars ($1,000,000); (iv) umbrella liability insurance over (i), (ii), and (iii): each occurrence and aggregate—one million dollars ($1,000,000); and (v) professional and cyber liability insurance, combined single limit—each occurrence and aggregate one million dollars ($1,000,000). Upon written request, Company shall furnish Client with a certificate from its insurance carrier or carriers showing its compliance with the foregoing insurance requirements.

 

10. Infringement Indemnity 

a. Infringement Indemnity. Company agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Client to the extent it is based on a claim Client’s use of the Software or Services within the scope of this Agreement infringes or violates any U.S. patent or copyright, and will indemnify Client from any losses, damages, or expenses resulting from settlement or judicial award from such claim; provided, however, this Section does not cover, and Company shall have no obligation hereunder for, infringement claims arising from: (i) Client’s failure to use the Software in accordance with the Documentation; (ii) Client’s failure to use the Software in its current version; (iii) Client’s failure to use any Updates required by Company; (iv) use of the Software in conjunction with third-party software or equipment or Client System where such combination is the cause for infringement; (v) modification to the Software made in accordance with Client’s instructions provided the infringement would not have occurred but for such modification; (vi) modification of the Software by anyone without Company’s approval provided the infringement would not have occurred but for such modification; (vii) use of the Software or Services after a non-infringing, replacement version has been made available without additional charges by Company to Client; or (vii) if Client has not adhered to its obligations under this Agreement. This Section states COMPANY’S entire liability and Client’s sole remedy for infringement claims.

b. Opportunity to Rectify. If a claim or suit under this Section for which Company is required to indemnify Client or is likely to be brought, Company may be required to suspend Client’s and its Licensed Users’ access to the Software and Client shall comply with such requirement, and Company will, at its sole option, either (i) procure for Client the right to use the Software, Services, or affected part thereof; (ii) replace the Software, Services, or affected part thereof with other non-infringing products or modify the Software, Services or affected part thereof to make such not infringing and functionally equivalent; or (iii) if the remedies set forth in clauses (i) and (ii) are not commercially feasible, as determined by Company, terminate this Agreement and the rights granted hereunder and refund to Client a pro rata amount of any prepaid Subscription Fee. Company will not be liable for any costs or expenses incurred without its prior written authorization.

c. Indemnification Procedure. As conditions to Company’s obligations in this Section: (i) Client shall provide Company with prompt notice of the claim or suit giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Company of its obligations under this Section if Company reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (ii) Company shall have sole control of the defense and of all negotiations for settlement of such claim or suit; and (iii) Client shall cooperate with Company in the defense or settlement of any such claim or suit, provided Client shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Company. Subject to clause (ii) above, Client may participate in the defense of any such claim or suit at its own expense.

 

11. Liability Exclusions & Limitation

a. Liability Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, INDIRECT OR SIMILAR DAMAGES, INCLUDING DAMAGE TO REPUTATION OR ANY DAMAGES ON ACCOUNT OF BUSINESS INTERRUPTIONS, LOST PROFITS, LOST DATA, LOSS OF USE OF DATA, LOST OPPORTUNITY, THE INABILITY TO USE THE SOFTWARE OR SERVICES, OR ANY OTHER THEORY (INCLUDING NEGLIGENCE OR STRICT LIABILITY) WHETHER OR NOT PLACED ON NOTICE OF ANY SUCH ALLEGED DAMAGES AND REGARDLESS OF THE FORM OF ACTION IN WHICH SUCH DAMAGES MAY BE SOUGHT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR SERVICES.

b. Liability Limitation. NEITHER PARTY’S CUMULATIVE LIABILITY, IF ANY, HEREUNDER FOR DAMAGES RELATING TO THIS AGREEMENT, THE SOFTWARE, OR SERVICES, WHETHER CAUSED BY FAILURE TO DELIVER, NONPERFORMANCE, ERRORS, BREACH OF WARRANTY OR OTHERWISE, SHALL EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATION IN THE PRECEDING SENTENCE SHALL NOT APPLY TO DAMAGES ARISING FROM OR RELATING TO A CONFIDENTIALITY OR SECURITY BREACH, INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATION, OR LOSSES ARISING FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. The existence of one or more claims will not enlarge this limitation.

 

12. Miscellaneous

a. Notice. Any formal notice or other communication given pursuant to this Agreement shall be in writing and delivered by certified mail, overnight express delivery service (such as Federal Express), or by priority mail by a recognized express mail vendor to the attention of “Legal Department” and at the Party’s address set forth on the initial page. Either Party may designate a different address by notice to the other in accordance herewith. Notice will be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when tendered. Any notice to Company shall also be sent electronically to legal@rippleworx.com.

b. Assignment. If a Party wishes to assign this Agreement to another entity, that Party must obtain the other’s prior written consent, which shall not be unreasonably withheld; provided it shall be reasonable to withhold consent if the assignee is a competitor of the non-assigning Party. Notwithstanding the foregoing, this Agreement may be assigned to a successor in interest in the context of a change in control, corporate reorganization, consolidation, merger, acquisition, or sale or transfer of all or substantially all of the assets of the assigning Party, provided: (i) such assignee is not a direct competitor of the other Party; (ii) such assignment does not interfere with the performance of obligations under this Agreement; (iii) such assignment does not change the scope of usage and the intent contemplated by the Parties under this Agreement; or (iv) such assignment is not pursuant to bankruptcy proceedings involving Client. An assignment of this Agreement will be binding on the Parties and their successors and permitted assigns.

c. Mediation. In the event of a dispute, one Party will promptly notify the other in writing. Each Party shall sponsor a representative with authority to settle the dispute, who will attempt in good faith to resolve the dispute within seven (7) days following the receipt of the written notice. If mediation is unsuccessful, a Party may seek final resolution through arbitration or court as provided herein.

d. Governing Law & Formal Dispute Resolution. The validity, interpretation, and enforceability of the Agreement shall be governed by the laws of the State of Delaware. The Parties agree should any dispute arise relating to the Agreement, they will first undertake mediation as provided herein. If mediation is unsuccessful and the dispute is monetary in nature, the dispute must be resolved through final and binding arbitration in Wilmington, Delaware, before the American Arbitration Association under its Commercial Arbitration Rules with one arbitrator. Either Party may seek non-monetary, equitable relief such as an injunction or specific performance in any competent court, wherever located, to enforce the Agreement.

e. Waiver of Jury Trial. To the fullest extent permissible under applicable law, each Party hereby knowingly and voluntarily waives any and all rights to a jury trial, to the fullest extent any such right will now or hereafter exist, in any proceeding, claim, counter‑claim, or other action involving any dispute or matter arising under the Agreement.

f. Waiver. The delay or failure of either Party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights. No waiver of any provision of the Agreement will be binding upon the Parties, unless evidenced by a writing signed by an authorized representative from each Party.

g. Relationship of the Parties. The Parties are independent contractors, and nothing in the Agreement will be deemed to place the Parties in the relationship of employer-employee, principal-agent, “borrowed servant,” partners, or joint venture. Neither Party will have any authority to bind or make commitments on behalf of the other Party for any purpose, nor will any such Party hold itself out as having such authority.

h. Publicity. In consideration of granting Client a license to access the Software, Company may publish Client’s name, logo, trade, and/or service marks in any Company Client list, sales activity, advertising, marketing, or any other form or manner of publicity for the limited purpose of indicating Client accesses the Software hosted by Company.

i. Force Majeure. If by reason of a labor dispute, strike, lockout, pandemic, riot, war, earthquake, fire or other action of the elements, accidents, internet service provider or hosting facility failures or delays involving hardware, software or power systems, governmental restriction, appropriation, or other cause beyond the reasonable control of a Party (“Force Majeure Event”) and that Party is unable to perform in whole or in part its obligations in this Agreement, then the affected Party shall provide notice to the other Party as soon as practical and the Parties commit to use best efforts to work toward a mutually agreeable solution. Neither Party will be liable for any losses, injury, delay, or damages suffered or incurred by the other Party due to a Force Majeure Event.

j. Entire Agreement & Precedence. The Agreement, the Appendices, SOWs, and any other documents made a part hereof or incorporated by reference, including any signed amendments, contains the complete and final understanding of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications between the Parties, whether written or oral. In the event of a conflict or inconsistency between or among terms in the Commercial Terms, these Applicable Terms and Conditions, a SOW, or the Company Privacy Policy or the User Agreement, the conflict will be resolved in favor of (1) the Commercial Terms, (2) these General Terms and Conditions including the Appendices, (3) the SOW, and (4) the Company Privacy Policy or the User Agreement, unless it is expressly stated that a provision is superseded. Moreover, nothing herein shall affect or terminate ongoing rights from non-disclosure agreements entered into by the Parties prior to the execution of the Agreement; provided, however, any Confidential Information exchanged between the Parties following the execution of the Agreement shall be governed solely by the confidentiality obligations set forth herein.

k. Construction & Interpretation. This Agreement shall, in all cases, be construed simply, as a whole, and in accordance with its fair meaning and not strictly for or against any Party. The Parties acknowledge this Agreement has been negotiated between them at ‘arm’s length’ with the opportunity to independently review this Agreement with legal counsel and each Party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the Party preparing it. The captions of sections and subsections are inserted solely for convenience and under no circumstances are they to be used to construe or interpret any particular provision.

l. Severability. If any particular provision of this Agreement is found to be invalid or unenforceable, then such provision will be stricken and it shall not affect the validity or continuing effect of any other provision, and to the extent practical the invalid or unenforceable provision shall be reformed so it aligns with the Parties’ intent.

m. Export Controls. The Software and associated services are subject to export controls under the U.S. Export Administration Regulations and other applicable laws.

n. Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. A document signed and transmitted by .pdf or other electronic means (such as DocuSign) shall have the same binding effect as an original “wet-ink” signature.

 

Appendix A: Support & Maintenance Services

1. Support & Maintenance Services. During the Term, Client may request Support & Maintenance Services by reporting Errors to Company via or electronic mail (support@rippleworx.com), Monday through Friday from 8:00 am to 5:00 pm EST excluding U.S. Federal holidays, the day after Thanksgiving, Christmas Eve, and the week between Christmas and New Year’s Day. Support & Maintenance Services include intake of inquiries regarding Software functionality/capabilities, incident reporting and resolution following the Support Procedures below, and intake of Software feature requests. Upon request, Company will undertake a semi-annual review of Support & Maintenance Services provided to Client.

2. Support Procedures. Procedures for Support & Maintenance Services are as follows:
Company will respond to Support & Maintenance Services requests based on the Severity Level assigned by Company, which is set forth in Table 1. Company will provide Client an initial response for each reported Error (indicating the support query has been received) within the timeframe set forth in Table 2 upon Company being notified of the Error. Company will assign Client an incident ticket number to be used for communications going-forward regarding the Error and provide the timeframe to rectify the Error after conducting an assessment. Client shall maintain current and accurate contact information for Client’s administrators to receive information and notifications. ‘Screen captures’ or a specific data reference may be necessary to replicate or effectively communicate the incident.

Table 1 – Severity Level 

 

Table 2 – Response Timeframe

Description	Severity I	Severity II	Severity III
Response Time Frame	within four (4) business hours	within two (2) business days	within five (5) business days
Involves Company Management Escalation	yes	as needed	as needed
Generates Resolution Report Identifying Cause	yes	yes	as needed

The failure to resolve an Error does not constitute a material breach of the Agreement.

3. Exclusions. Company does not provide Support & Maintenance Services to address failures suffered by the Software to the extent caused by (a) interfacing third-party hardware or software or Client System with the Software, (b) configuring an Update to the Software for Client, or (c) computer programs or code that are not provided by Company (including, without limitation, any computer viruses and other malicious code). Support & Maintenance Services will not be provided to (x) accommodate Client customizations, modifications, or manipulation of data, (y) accommodate requests for new functionality/capabilities, reporting, additional training, troubleshooting/resolving issues with third-party hardware or software or Client System, Client specific scenario testing, or database backup and/or restoration, or (z) Client’s third-party vendors. Company will determine, in its sole discretion, whether a failure or request is covered by Support & Maintenance Services. Upon request, Company will attempt to resolve an issue not covered by Support & Maintenance Services at Company’s current hourly rates.

4. Updates. Company performs daily Updates to the Software. All such Updates will be performed outside regular business hours (“Scheduled Updates”) unless exigent circumstances warrant otherwise. Company may also perform Scheduled Updates, which will be communicate two business days in advance of the Scheduled Update. Client should anticipate periodic, unannounced outages during this time frame. Scheduled Updates are excluded from Company’s Uptime Assurance.

5. Software Availability / Service Level Agreement.

a. Uptime Assurance. Company will use commercially reasonable efforts to make the Software accessible to Client twenty-four (24) hours a day, seven (7) days a week with an average of 99.5% availability, except for time when the system is down during Scheduled Updates, Force Majeure Events or interruptions or failures caused by Client or Licensed Users, their equipment or networks. Uptime Assurance is calculated on a monthly basis as (i) the total minutes in the month minus the number of minutes during such month the Software was not accessible by Client or its Licensed Users divided by (ii) the total minutes in the month (excluding from the calculation of (i) and (ii) any time the Software was inaccessible during Scheduled Updates, Force Majeure Events, interruptions or failures caused by Client or Licensed Users, or suspension or termination of Services permitted under this Agreement). Uptime Assurance applies only to a Client’s production instance, not test or development instances.

b. Service Level Agreement. Notwithstanding any other provision in the Agreement or remedies which may otherwise be available, Client’s sole and exclusive remedy for a breach of Uptime Assurance and Company’s sole and exclusive liability is Client shall be entitled to a service credit for the month in which Company failed to achieve the Uptime Assurance (“Service Credit”). The Service Credit shall equal two percent (2%) of the prorated monthly Subscription Fee for every 60-minute increment of downtime that exceeds Uptime Assurance.

c. Service Credit. In order to receive a Service Credit, Client must notify Company in writing it believes it is entitled to such credit within thirty (30) days of the end of the month in which the failure at issue occurred. Client agrees it is not entitled to the credit or any other remedy if such notice is not timely provided. Following Client’s notice in accordance with this Section, and Company’s verification that Client is entitled to a Service Credit (which verification Company will confirm within thirty (30) days of Client’s notice), Company shall provide a credit against future amounts due to Company. Client shall not offset any amounts or payments under this Agreement, except for amounts credited pursuant to the terms of this Appendix.