Terms and Conditions
ONLINE SERVICES AGREEMENT
This Online Services Agreement covers both the Free Service and the paid version of the One Click Contractor platform.
Unless as otherwise provided in this Online Service Agreement (“Agreement”), capitalized terms used in this Agreement have the following meanings:
“Contractor Confidential Information” means any financial information or other business and/or technical information and materials provided by the Contractor including customer’s name and contact information.
“Contractor Content” means the images and text furnished to RSF by the Contractor for incorporation in the Online Selling Tool and displayed on the Contractor Site.
“Contractor Marks” has the meaning provided in Section 8.1.
“Contractor Site” means the Contractor hosted site at the Contractor’s own web address which is linked to the Online Selling Tool Site.
“Data” means information provided by or to the User for incorporation in the Online Selling Tool.
“Free Service” means a product offering that provides basic features of the One Click Contractor platform. These features are provided with limits, included in the “Free Service Limits” section below. These features and limits are all subject to change without notice at the sole discretion of RSF.
“Go-Live Date” means the date that the Online Selling Tool are ready to be placed into a production environment.
“Link” means the Internet hyperlink from the Contractor Site to the Online Selling Tool Site.
“Manufacturer” means any manufacturer of products that are displayed on or in the Online Selling Tool in accordance with the terms of the Manufacturer Engagement.
“Manufacturer Engagement” means the process pursuant to which a Manufacturer enters into a “Manufacturer Agreement” with RSF and agrees to the terms pursuant to which the Manufacturer’s products will be included within the RSF Content.
“One Click Contractor™” means RSF’s proprietary Online Selling Tool.
“Online Selling Tool” means that online application to be designed, developed, supported and hosted by RSF in accordance with this Agreement that will be placed into production after the Go-Live Date and will allow Users to accomplish the following including but not limited to: 1. input measurements, create designs, load pricing, presentation, brochures, documents, photos and 2. For the creation of proposals, contracts, and 3. Online screen share and the execution of digital signatures. Management reserves the right to add new features at its discretion.
“Online Selling Tool Site” means the RSF hosted site at RSF’s own web address which is linked to the Contractor Site.
“Password Information” means the security information described and defined in Section 3.2 of this Agreement.
“Privacy Legislation” means all applicable privacy laws and regulations, as amended from time to time.
“RSF” means Remote Sales Force, LLC, an Indiana limited liability company.
“RSF Confidential Information” means any information, technical data or know-how including that which comprises or relates to RSF’s confidential and proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs, plan, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, research, marketing techniques and plans, business plans and strategies, customer and member information related to prices, and financial information or other business and/or technical information and materials, any analyses, compilations, studies or documents in respect of any of the foregoing, and whether in oral, demonstrative, written, electronic, graphic or machine-readable form. RSF Confidential Information also includes the terms of this Agreement.
“RSF Content” means the images, text, videos and product information furnished to Contractor by RSF related to the Online Selling Tool and displayed on the Contractor Site.
“User” means a user who receives approval by the Contractor, registers and receives services available through One Click Contractor™.
“User Information” means all information about Users, and Internet browsers (whether or not Users), that RSF otherwise collects or compiles in connection with the use of the Online Selling Tool including without limitation (i) name; address, email address, password information, demographic data, and any other identification data; (ii) any other User data submitted in the course of access or use of the Online Selling Tool; and (iii) any information about an identifiable individual that constitutes “personal information” under United States and Canada Privacy Legislation.
1.2 Certain Principles of Interpretation
In this Agreement:
(a) Words importing the singular include the plural and vice versa;
(b) all references to money amounts, will be to U.S currency unless otherwise noted;
(c) “Includes” and “including” mean “including without limitation”; and
(d) “Hereof”, “hereto” and “hereunder” refer to this Agreement taken as a whole, including any amendments to this Agreement.
2.1 Statement of Work
RSF will design and develop the Online Selling Tool (the “Statement of Work”) so that the Online Selling Tool will contain the modules and functionalities as generally described in the document. The Statement of Work will be performed in accordance with a development plan (the “Project Plan”) in a form agreed to between RSF and the Contractor.
2.2 Project Plan
The Project Plan will include a checklist provided to the Contractor. It is the contractor’s responsibility to deliver the required items on the checklist in a timely manner. It is intended that the Project Plan be a reasonably comprehensive view of the Statement of Work and include a description of the stages of the Statement of Work at which acceptance of any deliverable by the Contractor in accordance to Section 2.4 will be required.
2.3 Statement of Work Management
RSF will be primarily responsible for overall management and implementation of the Statement of Work, including coordinating, planning and implementing the Statement of Work in accordance with the Project Plan. Each party will designate a project manager whose duties will be to act as a liaison for communications between the parties. Each party may change its project manager at any time by written notice to the other party.
(a) All deliverables delivered by RSF under the Statement of Work or as otherwise set out in this Agreement will be subject to such testing and review by the Contractor as the Contractor may consider necessary or appropriate, acting reasonably and in good faith.
(b) On or before the day which is the fifth (5th) business day after the delivery of any such deliverables is considered accepted unless RSF is notified in writing of any faults or deficiencies which the Contractor believes need to be corrected or amended in the deliverable.
(c) Upon the faults or deficiencies being corrected or amended, the provisions of this Section will again apply.
(d) If the Contractor does not respond on or before the fifth (5th) business day after delivery of such deliverables or such longer or shorter period as has been agreed in writing between RSF and the Contractor, then the Contractor will be deemed to have accepted the applicable deliverable.
Compliance of the deliverables with any requirements referred to in the Project Plan or reasonably required by the Contractor will be the sole criteria for acceptance.
3.1 Incorporation of Content
(a) In connection with the Statement of Work, RSF will incorporate the RSF Content and Data within the Online Selling Tool.
(b) RSF will make commercially reasonable efforts to ensure the RSF Content and Data incorporated within the Online Selling Tool is in correct format to allow Users to access the RSF Content and Data from the Online Selling Tool.
(c) From time to time, RSF will, after a Manufacturer Engagement, update the RSF Content on the Online Selling Tool.
(d) For clarity, after the acceptance of such RSF Content in accordance with the requirements of Section 2.4, RSF specifically denies any responsibility or liability for the accuracy or quality of any information or material incorporated into the RSF Content.
(e) RSF reserves the right to refuse content which may deemed by RSF in its sole discretion as including but not limited to incompatible, complex, or too large.
3.1.1 Standard Onboarding Support
Potential Onboarding Materials to be submitted by Contractor:
- High Resolution Logo for Contracts and Documents
- Pricing Excel
- Excel with total of up to 1,000 lines (lines consist of products and product options)
- Line may consist of Name, Description, MSRP Price, Product Price, Labor Price, Cost Price, & Unit of Measure
- Contracts that include standard terms and conditions (Support up to 6 signatures/initials/dates)
- Resource documents may include Brochures, Welcome Letter, About Us, Contractor License, Certificate of Insurance, Lead Paint Documents, Notice of Cancellation, if applicable
- Supported File Types: PowerPoint, PDF, Videos (PowerPoint presentations are converted to PDF files and do not support transitions or animations)
- User Information
- Contractor to provide first name, last name, email, phone number, & security role for all users that need access to One Click Contractor
- Product Images
- Anything outside of a stock image shall be provided by contractor and identified by product
- Supported File Types: jpg, png
RSF supports edits within 30 days of when Onboarding materials are uploaded.
Additional training and onboarding requests outside of the standard scope may be subject to additional cost billed directly to the Contractor.
3.2 Hosting Services
RSF will host and operate the Online Selling Tool on the Online Selling Tool Site in accordance with the following terms:
(a) Link: RSF may provide the Contractor with code script to allow the Contractor to establish the Link from the Contractor Site to the Online Selling Tool Site.
(b) Security: RSF will use industry standard security features for Online Selling Tool Site and Online Selling Tool, associated networks, servers, and facilities designed to prevent unauthorized access to and tampering with or alteration of the Online Selling Tool.
(c) Acknowledgements: Contractor acknowledges and agrees that RSF does not warrant that Online Selling Tool Site or the Online Selling Tool will operate error free or uninterrupted, but, in the event of any such error or interruption, RSF will use commercially reasonable efforts to resolve such error or interruption as soon as reasonably practicable.
(d) Service Level Requirement: RSF will make commercially reasonable efforts to make the Online Selling Tool available to the Users 24 hours per day/ 7 days per week – 99.9% uptime (the “Service Level Requirement”). The Contractor acknowledges and agrees that User’s access and use of the Online Selling Tool may be interrupted from time to time for any of several reasons, including, circumstances beyond RSF’ control, periodic updating, maintenance or repair of the RSF systems that operate and make available the Online Selling Tool or other actions that RSF may reasonably take, or the activities of third parties not under RSF’ control.
(f) Domain Name: Registration and renewal for the Contractor’s own Internet address for the Contractor Site will be maintained by the Contractor at the Contractor’s expense. Such domain name will at all times be and remain in the name of the Contractor and will be and remain the property of the Contractor. The Online Selling Tool will have access from this domain name so long as there is an active agreement between RSF and the Contractor.
(g) Content Control: The Contractor has approved all the content related to the deliverables, RSF will not supplement, modify or alter any product, which has been accepted by the Contractor except with the Contractor’s prior consent. Any changes may be subject to additional fees.
(h) Monthly Reoccurring: The monthly reoccurring hosting services date will be determined as the date of delivery of products and/or services and/or Online Selling Tool for released and indicated by the Terms of Acceptance.
(i) Overage of Services: In the event the Online Selling Tool exceeds the Data limit of 300 minutes of total participant time per user per month of screen share and/or 8 digital signatures per user month then the fees under this Agreement shall increase accordingly.
3.3 Support Services
RSF will use commercially reasonable efforts to provide the Online Selling Tool.
(a) 24×7 access to documentation, whitepapers, and support forums.
(b) Up to a total of 3, 45 minute personal training sessions during the onboarding/training period (typically 30 days).
(c) After the onboarding/training period, RSF will provide up to 1 hour of phone/email support per month/seat.
Additional training and onboarding requests outside of the standard scope may be subject to additional cost billed directly to the Contractor.
The Contractor agrees to pay to RSF the amounts as agreed.
5.2 Payment Terms
In the event Contractor fails to make any payment to RSF when due under the Statement of Work or otherwise, a late fee of the greater of $100.00 or five percent (5%) of such delinquent amount shall be immediately due and payable. In addition, such delinquent amount and late fee shall begin to accrue interest at the rate of one and one-half (1 ½%) per month until paid. In the event RSF pursues collection of any amounts due by Contractor, RSF shall be entitled to recover all costs of collection, including but not limited to attorneys’ fees and court costs.
6.1 Ownership by the Contractor
Title to and ownership in and to all Contractor Confidential Information contained on the Online Selling Tool shall remain with Contractor and RSF will have no rights therein except the limited right to use such items for the purposes of performing its services and obligations as contemplated under this Agreement.
6.2 Ownership by RSF
Except as provided in Section 6.1, as between the Contractor and RSF, title to and ownership of all rights, including copyright and all other intellectual property rights, in and to:
(a) All Data and RSF Confidential Information;
(b) The Online Selling Tool, and all adaptations, enhancements, modifications and derivatives thereof; and
(c) All systems, hardware, programs and specifications and other materials owned by RSF or in the possession of RSF and used by RSF in conjunction with the performance of its services hereunder (whether or not specifically adapted by RSF as part of the Online Selling Tool hereunder, will at all times remain with RSF).
6.3 The Contractor Content
(a) Subject to the terms of this Agreement, the Contractor grants to RSF the non-exclusive right and license to reproduce, distribute, transmit, and publicly display the Contractor Content in the Online Selling Tool as is reasonably necessary for RSF to provide its service hereunder. Including but not limited to use and/or distribution of proposal and contract information for screen share and digital signature purposes.
(b) The Contractor will be responsible for: acquiring any authorizations necessary for use of the Contractor Content; the accuracy of the Contractor Content, and ensuring that the Contractor Content does not infringe or violate any right of any third party.
Notwithstanding the foregoing, RSF reserves the right, in its sole discretion, to exclude or remove from the Online Selling Tool any Contractor Content, Data, or other content not supplied by RSF which, in RSF’s sole discretion, may violate or infringe any law or third party rights, or which otherwise exposes or potentially exposes RSF to civil or criminal liability or which might otherwise harm the reputation or interests of RSF, provided that such right will not place an obligation on RSF to monitor the Contractor Content or permit RSF to exert editorial control over the Contractor Content.
Notwithstanding anything to the contrary in this Agreement, each party retains the right to use its knowledge, experience and know-how (including processes, ideas, concepts and techniques whether pre-existing or developed or acquired from any source, including the other party, in the course of its activities hereunder) in any manner, except for any confidential information or intellectual property of the other party.
7.1 Services Warranty
RSF warrants that all services provided by RSF to the Contractor hereunder will be performed in a good and workmanlike manner to the standards of professional skill and competence practiced by recognized firms performing services of a similar nature. In the event of a breach of this warranty, RSF will re-perform the services in accordance with such standards, free of additional charge.
7.2 Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, TO THE OTHER PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR OR INTENDED PURPOSE. RSF ALSO EXPRESSLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR CONDITION AS TO WHETHER THE ELECTRONIC DELIVERY, PERFORMANCE OR FUNCTION OF THE CONTRACTOR SITE WILL BE FREE FROM PROBLEMS, DEFECTS, DOWNTIME OR SERVICE DISRUPTIONS.
7.3 Limitation of Liability
Except for any breach of Article 10 and breaches of intellectual property rights of the other party, in respect of any claims for bodily injury or physical injury to or destruction of tangible property:
(a) The aggregate liability of either party to the other party arising out of or related to this Agreement will be limited to direct damages not to exceed an amount equal to the aggregate amounts paid by the Contractor to RSF in the preceding 12 month period hereunder; and
(b) In no event will either party be liable to the other party for incidental, punitive, exemplary, aggravated, indirect, special or consequential damages (including but not limited to lost business revenue, lost profits, failure to realize expected savings or loss of business opportunity), loss of data or procurement costs, even if that party has been advised of the possibility of such damages.
Except as provided in this Section, these limitations will apply to all causes of action and regardless of the form of action (including breach of contract, strict liability, tort including negligence or any other legal or equitable theory). If the Contractor attempts to circumvent Section 7.3 of this agreement the Contractor shall indemnify and hold RSF harmless for the action.
RSF will have the right to brand the Online Selling Tool, interface or other materials (“Interfaces”) by which Users access or use the Online Selling Tool, with the name, logos, trademarks and service marks of the Contractor designated and selected by the Contractor.
Notwithstanding the foregoing, the Contractor agrees to permit the inclusion on Interfaces of the following as may be reasonably requested by RSF and approved by the Contractor, acting reasonably:
(a) The slogan “Powered by Remote Sales Force LLC” or similar logo in the form provided by RSF; and
(b) Building Materials Manufacturer logos or marks (where appropriate)
(c) Reasonable notices preserving RSF’s proprietary rights.
8.2 Trademark License
The Contractor hereby grants to RSF a non-exclusive, royalty-free, fully paid-up, non-transferable license to use the Contractor Marks solely for the purposes of this Agreement.
RSF will use commercially reasonable efforts to maintain and enforce safety and physical security procedures with respect to its access and maintenance of User Information:
(a) That are at least equal to industry standards for providers of services comparable to RSF’s services hereunder; and
(b) Which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of User Information.
Each party will keep confidential and will not disclose or use for any purpose other than for performing its obligations under this Agreement and Confidential Information of the other party. Neither party will obtain any interest in the other party’s Confidential Information by reason of this Agreement or by reason of the disclosure of such Confidential Information pursuant to this Agreement. Each party will take the steps reasonably necessary to protect the confidentiality of the other party’s Confidential Information. Each party may disclose the other party’s Confidential Information only to its directors, officers, agents, employees, and professional advisors who have a need to know such Confidential Information for the performance of this Agreement, provided that such directors, officers, agents, employees and professional advisors are bound by written obligations of nondisclosure and non-use substantially the same as those contained in this Article. Nothing in this Article will affect or restrict a party’s use or disclosure of its own Confidential Information.
Contractor shall only use the Online Selling Tool in its contracting business and shall not share it with anyone outside of its contracting business. If, as a result (either direct or indirect) of a breach the Contractor and/or user may be subject to damages in excess of limits stated in Section 7.3 a.
The foregoing restrictions of confidentiality and non-use will not apply to information that:
(a) Is or becomes publicly available without breach of this Agreement;
(b) Is disclosed to a party by a third party, provided such information was not obtained by said third party, directly or indirectly, from the other party on a confidential basis;
(c) Is already known to a party without obligations of confidentiality;
(d) Is independently developed or discovered by a party without reliance upon Confidential Information of the other party as evidenced by the party’s business records; or
(e) Is the subject of a written permission to disclose provided by the disclosing party.
10.3 Permitted Disclosures
Notwithstanding any provisions of this Agreement to the contrary, either party may disclose the Confidential Information of the other party to applicable regulatory authorities or if required by judicial or administrative process or timely disclosure requirements imposed by law or by stock exchange policies, provided that such party first provides to the other party prompt notice of such required disclosure, maintains confidentiality to the greatest extent permissible and takes such steps as may be reasonable in the circumstances to allow the other party to seek a protective order with respect to the confidentiality of the information required to be disclosed.
11.1 Indemnity by the Contractor
The Contractor will defend, indemnify and hold harmless RSF, its employees, officers, directors and agents against all actions, proceedings, demands, claims, liabilities, losses, damages, judgements, costs and expenses (including, without limitation, reasonable legal fees) asserted against RSF that the Contractor Content or the Contractor Marks infringe any patent, copyright, trademark, trade secret or any other intellectual property right of a third party. These obligations do not include any claims to the extent they are based on use by RSF of the Contractor Content or the Contractor Marks in violation of this Agreement, in combination with any hardware or other software to the extent the claims are based on such infringement by such hardware or software, or any modification or development to the Contractor Content or the Contractor Marks made by RSF other than at the direction of the Contractor.
11.2 Indemnity by RSF
RSF will defend, indemnify and hold harmless the Contractor, its employees, officers, directors and agents against all actions, proceedings, investigations, inquiries, demands, complaints, claims, liabilities, losses, damages, orders, judgements, costs and expenses (including, without limitation, reasonable legal fees) arising from any claim asserted against the Contractor arising out of or related to an infringement by Online Selling Tool Site or the Online Selling Tool (other than the Contractor Content, the Contractor Marks, User Information or any software, content or other materials that are provided by the Contractor to RSF hereunder) of any patent, copyright, trademark, trade secret or any other intellectual property right of a third party.
11.3 Indemnification Procedures
The indemnified party under Section 11.1 or Section 11.2, as applicable (the “Indemnified Party”) will promptly notify the party subject to the indemnity obligations (the “Indemnifying Party”) in writing of any claim, demand or action that could give rise to any indemnity obligation hereunder by the Indemnifying Party, allow the Indemnifying Party to control the defence or settlement thereof with counsel mutually satisfactory to the parties, or, failing which, selected by the Indemnifying Party, and provide all reasonable assistance in connection therewith, at the Indemnifying Party’s request and expense. The Indemnified Party may participate in the defence or settlement of any such claim at its own expense; provided, however, that an Indemnified Party (together with all other indemnified persons hereunder that may be represented without conflict by one counsel) will have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential conflicts of interest between such Indemnified Party and another other party represented by such counsel in such proceeding. The failure by the Indemnified Party to deliver written notice to the Indemnifying Party within a reasonable time of any such claim, demand or action, if materially prejudicial to the Indemnifying Party’s ability to defend such claim, demand or action, will relieve such Indemnifying Party of any liability to the Indemnified Party under this Article 11 to the extent of the prejudice caused by such failure. The Indemnifying Party agrees that it will not settle any claim in a manner which would impose any obligation on the Indemnified Party or restrict the Indemnified Party’s right, title or interest, including all intellectual property rights in the Indemnified Party’s products or services, without the Indemnified Party’s prior written consent.
The Term of this agreement will commence on the Effective Date hereof and will continue in full force for a minimum period of one (1) month after the Go-Live Date (the “Initial Term”). In the event the Customer does not pay 100% of their onboarding fee up-front the term of this Agreement will commence on the Effective Date hereof and will continue in full force for a minimum period of twelve (12) months after the Go-Live Date (the “Initial Term”).
The Initial Term will be extended for extension periods of one (1) month per each extension (each an “Extension Term”) unless either party provides a written notice of termination to the other party with thirty (30) days notice.
12.2 Termination by RSF
In addition to and not in lieu of or in limitation of any other rights or remedies that RSF may have, RSF may terminate this Agreement upon written notice if:
(a) the Contractor fails to comply with any material provision of this Agreement and fails to cure the same within thirty (30) days of the Contractor’s receipt of written notice of such failure; or
(b) the Contractor becomes insolvent or makes an assignment for the benefit of its creditors or there is filed by or against the Contractor any bankruptcy, receivership, reorganization or similar proceeding under any present or future debtor relief law that is not stayed or dismissed within a reasonable amount of time or, in any event, within ninety (90) days.
12.3 Termination by the Contractor
In addition to and not in lieu of or in limitation of any other rights or remedies that the Contractor may have, the Contractor may terminate this Agreement upon written notice if:
(a) RSF materially breaches any provision of this Agreement dealing with User Information and fails to cure the same within thirty (30) days of RSF’ receipt of a written notice of such failure;
(b) RSF fails to comply with any material provision of this Agreement and fails to cure the same within thirty (30) days of RSF’ receipt of written notice of such failure; or
(c) RSF becomes insolvent or makes an assignment for the benefit of its creditors or there is filed by or against RSF any bankruptcy, receivership, reorganization or similar proceeding under any present or future debtor relief law that is not stayed or dismissed within a reasonable amount of time or, in any event, within ninety (90) days.
12.4 Effect of Termination
Upon termination of this Agreement and without prejudice to any rights which a party may have (including equitable remedies):
(a) At no additional cost to the other party, each party will return the other party’s Confidential Information, and have an officer certify the completeness of same, within thirty (30) days after such termination;
(b) The licenses granted by the Contractor to RSF under this Agreement will immediately terminate;
(c) The User and Contractor’s right to use the Online Selling Tool will immediately terminate;
(d) At a cost of $20/customer/job, with a maximum of $1000 prepaid by Contractor to RSF, RSF will return to the Contractor all the Contractor Content as delivered by the Contractor to RSF, and all other Contractor property in RSF’ possession or control. The format of this data export is at the sole discretion of RSF.
12.5 Survival of Terms
Articles 6,7,9,10,11 and this Section 12.5 and such other provisions as may reasonably be expected to remain in force will survive the termination of this Agreement and will remain in full force and effect following such termination. The termination of this Agreement will not affect the rights of any party, subject to the terms of this Agreement, to make a claim for damages arising from a breach of any provision of this Agreement, which occurred prior to such termination.
This Agreement is not assignable by either party in whole or in part without the prior written consent of the other party, except that, upon written notice to the other party but without the other party’s consent, a party may assign this Agreement and any of its rights and obligations to an affiliate or subsidiary, or as part of the sale of all or any part of the business or assets or shares of the party, or pursuant to any merger, consolidation or other reorganization of the party.
13.2 No Waiver
The failure of a party to exercise the rights granted to it hereunder upon the occurrence of any default or breach will not constitute a waiver of any such right upon a reoccurrence of the same or a similar breach of default or the occurrence of any other default or breach.
Any notice, request or communication required or provided to be given under this Agreement will be in writing and will be sufficiently given and will be deemed given when delivered personally, or, if faxed upon receipt of automatic confirmation of successful transmission, of if mailed by certified or registered mail, return receipt requested, postage, prepaid, then three (3) days after such mailing. Any such notice, request or communication will be addressed to the Contractor’s address as listed in Section 0.1, to RSF’ address as listed in Section 0.1, or to such other party at such other address as such party, by notice given as herein provided, will designate.
13.4 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces any other agreement between the parties with respect to the subject matter hereof. This Agreement may not be modified except in a writing signed by both parties hereto.
13.5 Governing Law; Venue.
This Agreement shall be interpreted, construed and enforced in all respects in accordance with the internal laws of the State of Indiana without regard to any state’s choice of law rules. Any action or proceeding arising out of, in connection with, or by reason of this Agreement may be filed and maintained in state court located in Hamilton County, Indiana or federal court located in Marion County, Indiana.
13.6 No Partnership or Agency
Nothing contained in this Agreement will be construed as creating the relationship between the parties of partners, joint venture or agents, and neither party will have the power or authority to bind the other party to any contract or commitment in any manner whatsoever.
In the event any term or provision of this Agreement or any application thereof will be deemed to be illegal, void or unenforceable, then the same will not affect the remaining portions of this Agreement or any other application of the same that are not determined to be illegal, void or unenforceable, which remaining provisions and any other such application will survive and constitute the agreement of the parties.
13.8 Unavoidable Delay
If a party’s obligations are materially interrupted or interfered with by reason of fire, flood, casualty, lockout, strike, labour conditions, unavoidable accident, national calamity, mechanical or other breakdown or electrical or sound equipment or plant, riot, act of God, or by any enactment of law, or by order of any legally constituted authority, or by any other similar cause (collectively, “Unavoidable Delay”), the obligations of the parties hereto will be suspended during the period of such interruption or interference, and a period of time equivalent to the period or periods of suspension will be added to the time of performance of this Agreement, provided that (i) if such time is reasonably certain to exceed thirty (30) days, or (ii) if such delay in fact exceeds thirty (30) days, then either party may, at its election made then or at any time thereafter, in the case of either (i) or (ii) (and in the case of (ii), notwithstanding that the election based on (i) was available but not exercised), terminate this Agreement upon ten (10) days written notice to the other.
This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All of these counterparts will be all purposes constitute one agreement; binding on the parties, notwithstanding that all parties are not signatories to the same counterpart. A faxed copy or photocopy of this Agreement executed by a party in counterpart or otherwise will constitute a properly executed, delivered and binding agreement or counterpart of the executing party.
13.10 Further Assurances
Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies intended to be created in favour of the other.
13.11 Non-Solicitation of Employees
During the term of this Agreement and for a period of six (6) months after the expiration or termination of this Agreement neither party will, without the prior written approval of the other party, directly or indirectly induce or solicit an employee or consultant of the other party to leave the employ or engagement of that party. This clause will not restrict a party from employing staff who make unsolicited applications in response to a general advertisement or genuine recruitment campaign.
13.12 Compliance with Applicable Laws
Each party will comply with all applicable laws, regulations and ordinance of any governmental authority having jurisdiction with respect to the party’s undertakings under this Agreement.
13.13 Advertising or Publicity
Except as expressly provided in this Agreement neither party, or refer to or identify the other party in advertising or publicity releases, promotional or marketing materials, or securities offering documents, without first securing the written consent of such other party’s authorized representative.
This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
14.1 Free Service Limits
The following limits are imposed with the Free Service. They are subject to change and/or enforcement at RSF’s sole discretion.
(a) Documents: 300 total documents
(b) Images: 400 total photos
(c) Screen Share Usage: 120 minutes
(d) Signed Documents: 5 signed documents
(e) Customers/Jobs: 20 Customers/Jobs
14.2 Data Retention Policy
We will retain your personal data for the entire time you keep your account open. After you close your account, we may retain your Personal Data:
(a) for as long as necessary to comply with any legal requirement;
(b) on our backup and disaster recovery systems in accordance with our backup and disaster recovery policies and procedures;
(c) for as long as necessary to protect our legal interests or otherwise pursue our legal rights and remedies; and
(d) for data that has been aggregated or otherwise rendered anonymous in such a manner than you are no longer identifiable, indefinitely.
1.1. License. Subject to this Agreement, Content Owner grants End User and End User agrees to comply with a non-sublicensable, non-transferable, non-exclusive, limited license to use the Imagery. All rights and uses of the Imagery not expressly granted by this Agreement are reserved by Content Owner.
1.2. Permitted Uses. Except as restricted by Section 1.3 below, End User may use the Imagery as specified below and for no other use:
1.2.1. Make a commercially reasonable number of hardcopies and softcopies of the Imagery for internal use or audit purposes only.
1.2.2. Distribute within the End User’s environment the Imagery (with copyright markings) for internal use.
1.3. License Restrictions. Unless Content Owner specifically agrees in writing, End User will not:
1.3.1. use, copy, display, modify, create derivative works based on, merge or transfer copies of the Imagery except as expressly provided in this Agreement;
1.3.2. sublicense, sell, rent, or lease the Imagery or otherwise transfer the Imagery to a third-party;
1.3.3. distribute or display the Imagery publicly;
1.3.4. use the Imagery or High Risk Activities; or
1.3.5. alter or remove any copyright notice or proprietary legend contain in or on the Imagery and that any embodiment of the Imagery will contain a notice stating “The Imagery is owned by Google, Inc. All rights arc reserved by Google, Inc.”
2. Compliance with URL Terms. End User agrees to comply with the applicable URL Terms that follow. “URL Terms” means the following, in the listed order of precedence if there is a conflict:
A. the Service’s Acceptable Use Policy at https://www.google.com/work/earthmaps/legal/universal_aup.html;
B. the Google Maps / Google Earth Legal Notices at http://maps.google.com/help/legalnotices_maps.html;
C. the Google Maps / Google Earth Additional Terms of Service at http://maps.google.com/help/terms_maps.html;
D. Google Developer Guidelines applicable to each Service at: https://developers.google.com/products/#m and https://developers.google.com/maps/documentation/tile/;
E. the then-current Service Level Agreement at https://www.google.com/work/earthmaps/legal/maps-sla.html; and
F. the then-current Technical Support Services Guidelines at https://www.google.com/work/earthmaps/legal/tssg.html
3. Delivery. The Imagery will be delivered to End User by Reseller.
4. Updates. Content Owner may make updates to the Imagery on a regular basis.
5. Confidential Information.
5.1. Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.
5.2. Exceptions. Confidential Information does not include information that: (a) the recipient already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
5.3. Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law, but only after it, if legally permissible:(a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
6. Intellectual Property. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s Intellectual Property Rights. Nothing in this Agreement constitutes a waiver of Content Owner’s rights under U.S. copyright law or any other federal or state law pertaining to the Imagery and End User shall maintain and display Content Owner’s copyright notice on the Imagery that you use.
7. Publicity. Neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written approval.
8. Warranties & Disclaimers. Each party represents and warrants that it has full power and authority to enter into this Agreement. End User represents and warrants that it will comply with all applicable laws with respect to End User’s use of the Imagery. EXCEPT FOR THE EXPRESS WARRANTIES MADE BY THE PARTIES IN THIS SECTION, THE IMAGERY IS LICENSED “AS IS” AND THE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THAT THE IMAGERY WILL BE ERROR FREE OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability.
EXCEPT FOR CONTENT OWNER’S GROSS NEGLIGENCE, FOR WHICH CONTENT OWNER’S LIABILITY AND END USER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY END USER DURING THE 12 MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM, CONTENT OWNER’S TOTAL LIABILITY AND END USER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY END USER DURING THE 3 MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. THESE LIMITS ARE CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMITS. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMITS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CONTENT OWNER, OR ANY PROVIDER OF INFORMATION USED BY CONTENT OWNER IN PREPARING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CONTENT OWNER IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
10. Termination. A party may terminate this Agreement if the other party materially breaches any material provision of this Agreement and fails to cure the breach within 30 days after receiving written notice of the breach from the non-breaching party. Following termination, End User will use commercially reasonable efforts to cease display of the Imagery within 30 days after termination and will certify in writing that all known copies of the Imagery, including backup and archival copies, have been destroyed.
11.1. Notices. All notices must be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
11.2. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except that Content Owner may assign to an affiliate but only if (a) the affiliate agrees in writing to be bound by the terms of this Agreement and (b) Content Owner remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
11.3. Change of Control. Upon a change of control of End User (for example, through a stock purchase or sale, merger, or other form of corporate transaction) (a) End User will provide written notice to Content Owner within 30 days after the change of control, and (b) Content Owner may terminate the license to use the Imagery under this Agreement any time between the change of control and 30 days after it receives the written notice in subsection (a).
11.4. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, unusually severe weather condition and Internet disturbance) that was beyond the party’s reasonable control.
11.5. No Waiver. Failure to enforce any provision will not constitute a waiver.
11.6. Severability. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
11.7. No Agency. The parties are independent contractors. and his agreement does not create on agency, partnership or joint venture.
11.8. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.9. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
11.10. Governing Law. This Agreement will be governed by, interpreted and enforced in accordance with the laws of the United States of America, without reference to conflict of laws. To the extent permitted by federal law, the laws of the State of California (excluding California’s choice of law rules) will apply in the absence of applicable federal law.
11.11. Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
11.12. Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
11.13. Entire Agreement. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
12.1. “Confidential Information” means Information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances.
12.2. “Content Owner” means the owner of the applicable data, information and other content included in any Imagery.
12.3. “High Risk Activities” means use such as the operation of nuclear facilities, air traffic control or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
12.4. “Imagery” means the Image data delivered to the End user for use under this Agreement.
12.5. “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright low, trade secret law, trademark law, moral rights law, and other similar rights.
12.6. “Reseller” means the authorized reseller approved by Content Owner.