TERMS OF SERVICE
Updated: October 11, 2022
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING REVMETHODS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE REVMETHODS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING REVMETHODS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
AGREEMENT
These RevMethods Terms of Service (“Agreement”) are entered into by and between RevMethods and the entity or person (other than a Reseller) placing an order for, or accessing, RevMethods (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to RevMethods (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer through an Order Form that reference this Agreement.
Modifications to this Agreement: From time to time, RevMethods may modify this Agreement. Unless otherwise specified by RevMethods, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. RevMethods will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of RevMethods after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
1. Use of Service
1.1. Service Provision and Access. RevMethods will make the Service available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, and the Order Form. Customer may permit its Contractors to serve as Users provided that any use of the Service by each such Contractor is solely for the benefit of. Customer shall be responsible for each User’s compliance with this Agreement.
1.2. Compliance with Applicable Laws. RevMethods will provide the Service in accordance with its obligations under laws and government regulations applicable to RevMethods’ provision of such services to its customers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data, without regard to Customer’s particular use of the services and subject to Customer’s use of the services in accordance with this Agreement.
1.3. General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Service to a third party or in a service bureau or outsourcing offering; (b) use the Service to provide, or incorporate the Service into, any general purpose data warehousing service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to RevMethods); or (d) remove or obscure any proprietary or other notices contained in the Service.
2. Customer Data
2.1. Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Service. Subject to the terms of this Agreement, Customer hereby grants to RevMethods a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the RevMethods Offerings to Customer, to prevent or address service or technical problems therein, or as may be required by law.
2.2. Use Obligations.
(a) In General. Customer’s use of the RevMethods Offerings and all Customer Data will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to RevMethods under this Agreement and that the processing of Customer Data by RevMethods will not violate any laws or the rights of any third party.
(b) HIPAA Data. Customer agrees not to upload to the Service any HIPAA Data unless Customer has entered into BAA with RevMethods. Unless a BAA is in place, RevMethods will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. If Customer is permitted to submit HIPAA Data to the Service, then Customer may submit HIPAA Data to the Service only by uploading it as Customer Data. Upon mutual execution of the BAA, the BAA is incorporated by reference into this Agreement and is subject to its terms.
2.3. Data Privacy. The parties shall comply with the DPA.
3. Intellectual Property
3.1. RevMethods Technology. Customer agrees that RevMethods retains all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the RevMethods Technology. Except for the express limited rights set forth in this Agreement, no right, title or interest in any RevMethods Technology is granted to Customer. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service. Notwithstanding anything to the contrary herein, RevMethods may freely use and incorporate any Feedback into RevMethods’ products and services.
3.2. Usage Data. Notwithstanding anything to the contrary in this Agreement, RevMethods may collect and use Usage Data to develop, improve, support, and operate its products and services. RevMethods may not share any Usage Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 4 (Confidentiality) of this Agreement, or (b) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified.
3.3. Marketing. RevMethods may use and display Customer’s name, logo, trademarks, and service marks on RevMethods’ website and in RevMethods’ marketing materials in connection with identifying Customer as a customer of RevMethods. Upon Customer’s written request, RevMethods will promptly remove any such marks from RevMethods’ website and, to the extent commercially feasible, RevMethods’ marketing materials. If RevMethods requests, Customer agrees to participate in a case study, press release and/or cooperate with RevMethods in speaking to the media.
4. Confidentiality. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
5. Fees and Payment; Taxes; Payment Disputes
5.1. Fees and Payment. All Fees and payment terms are as set forth in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. If Customer issues a purchase order upon entering into an Order Form, then: (i) any such purchase order submitted by Customer is for its internal purposes only, and RevMethods rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict in any way with this Agreement or the applicable Order Form and such additional or conflicting terms will have no effect; (ii) it shall be without limitation to RevMethods’ right to collect Fees owing hereunder; (iii) it shall be for the total Fees owing under the applicable Order Form; and (iv) on request, RevMethods will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least ten (10) business days prior to the invoice date.
5.2. Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder, including without limitation all use or access of the RevMethods Offering by its Users. If RevMethods has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, RevMethods will invoice Customer and Customer will pay that amount unless Customer provides RevMethods with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to RevMethods, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, RevMethods receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon RevMethods’ request, Customer will provide to RevMethods its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the purchased services.
5.3. Payment Disputes. RevMethods will not exercise its rights under Section 6.2 (Termination for Cause) or Section 6.5(a) (Suspension of the RevMethods Offerings) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
6. Term and Termination
6.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no Order Form currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice (without limiting Section 5.3 (Payment Disputes)); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
6.3. Effect of Termination; Customer Data Retrieval. Upon written notice to RevMethods, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Order Form shall continue in full force and effect for the duration of the Retrieval Right. RevMethods shall have no further obligation to make Customer Data available after termination of this Agreement and may thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the RevMethods Offerings (including any related RevMethods Technology) and delete all copies of Documentation, any associated passwords or access codes, and any other RevMethods Confidential Information in its possession. Notwithstanding any termination or anything to the contrary in this Agreement or any Order Form, Customer shall pay for all of its use of the RevMethods Offerings.
6.4. Survival. The following sections will survive any expiration or termination of this Agreement: 1.3 (General Restrictions), 3 (Intellectual Property), 4 (Confidentiality), 5.1 (Fees and Payment), 5.2 (Taxes), 6 (Term and Termination), 7.3 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitation of Remedies and Damages), 11 (General Terms), and 12 (Definitions).
6.5. Suspension of the RevMethods Offerings. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, RevMethods reserves the right to suspend provision of the RevMethods Offerings: (a) if any Fees are thirty (30) days or more overdue (and are not otherwise subject to Section 5.3 (Payment Disputes)); (b) if RevMethods deems such suspension necessary as a result of Customer’s breach of Sections 1.3 (General Restrictions) or 2.2 (Use Obligations); (c) if RevMethods reasonably determines suspension is necessary to avoid material harm to RevMethods or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of RevMethods’ control; or (d) as required by law or at the request of governmental entities.
7. Warranty
7.1. Service Warranty. RevMethods warrants that the Service will operate in substantial conformity with the applicable Documentation. If RevMethods is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form, and Customer, as its sole remedy, will be entitled to receive a refund of any prepaid unused Fees for the applicable Service purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the, modifications to the Service by Customer or any third-party, or third-party hardware, software, or services used in connection with the Service.
7.2. Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
7.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE REVMETHODS OFFERING IS PROVIDED “AS IS,” AND REVMETHODS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. REVMETHODS DOES NOT WARRANT THAT THE USE OF THE REVMETHODS OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES REVMETHODS WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY.
8. Support and Availability. During a Subscription Term, RevMethods will provide Customer the level of support for the Service set forth in the applicable Order Form.
9. Indemnification
9.1. Indemnification by RevMethods. RevMethods will defend Customer against any claim by a third party alleging that the Service or any Deliverable, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by RevMethods (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service or Deliverable results (or in RevMethods’ opinion is likely to result) in an infringement claim, RevMethods may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service or Deliverable; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form, and refund to Customer any prepaid unused Fees for the applicable Service or Deliverable. The foregoing indemnification obligation of RevMethods will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service by any party other than RevMethods or based on Customer’s specifications or requirements; (2) the combination of the Service with products or processes not provided by RevMethods; (3) any use of the Service in non-conformity with this Agreement; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by RevMethods. This section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
9.2. Indemnification by Customer. Customer will defend RevMethods against any claim by a third party arising from or relating to any Customer Data or any Customer-offered product or service used in connection with the Service and will indemnify and hold harmless RevMethods from and against any damages and costs awarded against RevMethods or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
9.3. Indemnification Procedures. In the event of a potential indemnity obligation under Section 9, the indemnified party will: (a) promptly notify the indemnifying party in writing of the claim, (b) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (c) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under Section 9 shall not relieve the indemnifying party of its obligations under Section 9. However, the indemnifying party shall not be liable for any litigation expenses the indemnified party incurred before such notice was given, or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under Section 9 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
10. Limitation of Remedies and Damages. EXCEPT AS TO “EXCLUDED CLAIMS,” TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
(A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
(B) SUBJECT TO SUBSECTION (C) BELOW, EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO REVMETHODS IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES (“GENERAL LIABILITY CAP”);
(C) IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO REVMETHODS IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES (“DATA PROTECTION CLAIMS CAP”);
(D) IN NO EVENT SHALL EITHER BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF A PARTY HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE DATA PROTECTION CLAIMS CAP;
(E) THE PARTIES AGREE THAT SECTION 9 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND
(F) THE APPLICABLE MONETARY CAPS SET FORTH IN SECTION 9 SHALL APPLY, ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) GOVERNING CUSTOMER’S USE OF THE REVMETHODS OFFERINGS ENTERED INTO BETWEEN REVMETHODS AND CUSTOMER.
11. General Terms
11.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and RevMethods may assign this Agreement in its entirety to any Affiliate. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
11.2. Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and shall not affect interpretation of this Agreement.
11.3. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this section shall not apply to claims subject to indemnification under Section 10 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
11.4. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New Castle County, Delaware, and both parties hereby submit to the personal jurisdiction of such courts.
11.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this section and will be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon receipt. Email notifications to RevMethods shall be to support@revmethods.com. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email.
11.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly set forth herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
11.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. RevMethods may change and update the Service (in which case RevMethods may update the applicable Documentation accordingly), subject to the warranty in Section 7.1 (Service Warranty).
11.8. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.9. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
11.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees.
11.11. Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any third parties to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
12. Definitions
“Account” means Customer’s account in the applicable Service in which Customer stores and processes Customer Data.
“BAA” means a business associate agreement governing the parties’ respective obligations with respect to any HIPAA Data uploaded by Customer to the Service in accordance with the terms of this Agreement.
“Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. All RevMethods Technology and the terms and conditions of this Agreement will be deemed Confidential Information of RevMethods without any marking or further designation. Confidential Information shall not, however, include information that the Receiving Party can demonstrate: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information.
“Contractor” means Customer’s independent contractors and consultants.
“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Service for storage in a data repository.
“Data Protection Claims” means any claims arising from a party’s breach of Section 2.3 (Data Privacy), or Section 4 (Confidentiality), where such breach results in the unauthorized disclosure of Customer Data, or breach of Section 2.2 (Use Obligations).
“Disclosing Party” is defined in Section 4 (Confidentiality).
“Documentation” means RevMethods’ technical documentation and usage guides for the Service.
“DPA” means the Customer Data Processing Addendum.
“Excluded Claims” means obligations and claims based on: (a) a party’s breach of its obligations in Section 4 (Confidentiality) (but excluding obligations and claims relating to Customer Data); (b) either party’s express obligations under Section 9 (Indemnification); and/or (c) liability which, by law, cannot be limited (e.g., tort claims for gross negligence and intentional misconduct).
“Feedback” means any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the RevMethods Offerings relating to RevMethods’ products or services.
“Fees” means the fees payable by Customer to RevMethods for the applicable RevMethods Offerings.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
“Order Form” means the RevMethods ordering document governed by this Agreement that is signed by RevMethods and Customer and specifies the RevMethods Offerings procured by Customer.
“Receiving Party” is defined in Section 4 (Confidentiality).
“Retrieval Right” is defined in Section 6.3 (Effect of Termination; Customer Data Retrieval).
“Service” means a RevMethods software-as-a-service offering made generally available and ordered by or for Customer as set forth in an Order Form.
“RevMethods” means RevMethods, Inc.
“RevMethods Offering(s)” means the Service and any support and other ancillary services (including, without limitation, services to prevent or address service or technical problems) provided by RevMethods.
“RevMethods Technology” means the Service and any and all related and underlying technology and documentation in any RevMethods Offerings; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated therein.
“Subscription Term” means the period of time during which Customer is authorized to access the RevMethods Offering, as specified in the applicable Order Form.
“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of RevMethods.
“Third-Party Applications” means separate or third-party data, services, offerings, or applications (and other consulting services related thereto) made available by Customer or to Customer that interoperate with the Service and are subject to an independent agreement or supplemental terms to this Agreement.
“Usage Data” means usage and operations data in connection with the Customer’s use of the Service, including query logs and metadata (e.g., object definitions and properties).
“User” means the persons designated and granted access to the Service by or on behalf of Customer, including, as applicable, any of its and its Affiliates’ Contractors.
“VAT/GST Registration Number” means the value added tax/GST registration number of the business location(s) where Customer is legally registered and the ordered services are used for business use.