PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING THE BOX CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.
This agreement is between Mark Your Media, LLC, DBA ReviewRail, a Connecticut limited liability company (ReviewRail), and the customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE. This agreement provides Customer access to and usage of an Internet based software service as specified on an order.
2. USE OF SERVICE.
a. Customer Owned Data. All data, information and content uploaded by Customer remains the property of Customer, as between ReviewRail and Customer (Customer Data). Customer grants ReviewRail the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
b. Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify ReviewRail promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s technical documentation and applicable law, including without limitation all email marketing laws and the CAN SPAM Act.
d. ReviewRail Support. ReviewRail must provide customer support for the Service under the terms of ReviewRail’s Customer Support Policy (Support) which is located at www.reviewrail.com/support.
e. 15-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 15-day time period (unless extended by ReviewRail in writing). The Service is provided AS IS, with no warranty during this time period. All Customer data will be deleted after the trial period, unless Customer converts its account to a paid Service.
3. DISCLAIMERS. REVIEWRAIL DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE REVIEWRAIL TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, REVIEWRAIL DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED. REVIEWRAIL DISCLAIMS ALL LIABILITY REGARDING CLAIMS ARISING OUT OF OR RELATED TO ANY TYPE OF REFERRAL PROGRAM USED BY CUSTOMER WITH THIS SERVICE.
4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. ReviewRail may temporarily suspend or terminate, or both, the Service if Customer’s payment on any invoice is more than 10 days past due.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). ReviewRail’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. REVIEWRAIL PROPERTY.
a. Reservation of Rights. The software, workflow processes, user interface, designs, and other technologies provided by ReviewRail as part of the Service are the proprietary property of ReviewRail and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with ReviewRail. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software (defined below). ReviewRail reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Software; or (vi) access the Service or use the Software to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c. Software and Documentation. All software or code provided by ReviewRail as part of the Service, (Software) are licensed to Customer as follows: ReviewRail grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software, solely in connection with the Service.
d. Anonymized Data. During and after the term of this agreement, ReviewRail may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
7. TERM AND TERMINATION.
a. Term. This agreement continues until all orders have terminated.
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return of Customer Data.
• Within 60-days after termination, upon request ReviewRail will make the Service available for Customer to export Customer Data as provided in Section 2(a).
• After such 60-day period, ReviewRail has no obligation to maintain the Customer Data and may destroy it.
d. Return ReviewRail Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay ReviewRail for any unpaid amounts, and destroy or return all property of ReviewRail, including without limitation its Software. Upon ReviewRail’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. ReviewRail may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. ReviewRail will attempt to contact Customer in advance.
8. LIABILITY LIMIT.
a. EXCLUSION OF INDIRECT DAMAGES. ReviewRail is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.
b. TOTAL LIMIT ON LIABILITY. ReviewRail’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
9. INDEMNITY.
a. Defense of Third Party Claims. ReviewRail will defend or settle any third party claim against Customer to the extent that such claim alleges that ReviewRail technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies ReviewRail of the claim in writing, cooperates with ReviewRail in the defense, and allows ReviewRail to solely control the defense or settlement of the claim. Costs. ReviewRail will pay infringement claim defense costs incurred as part of its obligations above, and ReviewRail negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then ReviewRail may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If ReviewRail determines that none of these are reasonably available, then ReviewRail may terminate the Service and refund any prepaid and unused fees. Exclusions. ReviewRail has no obligation for any claim arising from: ReviewRail’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Use of Customer Data; or technology or aspects not provided by ReviewRail. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND REVIEWRAIL’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. By Customer. If a third-party claims against ReviewRail that any part of the Customer Data infringes or violates that party’s patent, copyright or other right, Customer will defend ReviewRail against that claim at Customer’s expense and pay all costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Customer, provided that ReviewRail: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in, the defense and any related settlement.
10. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Connecticut (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Litchfield County, Connecticut and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by ReviewRail. No waiver is effective unless the party waiving the right signs a waiver in writing.
b. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
f. No Additional Terms. ReviewRail rejects additional or conflicting terms of any Customer form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Feedback. By submitting ideas, suggestions or feedback to ReviewRail regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information, and Customer hereby grants ReviewRail an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
Rev 3/23/16