TERMS OF SERVICE
These Terms of Service (these “Terms”) are entered into by Raken and Customer and govern Customer’s access to and use of the Services.
Please read these Terms carefully. These Terms give you specific legal rights. In addition, you may also have other legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, limitations of liability, indemnification, and waiver of punitive damages contained in these Terms will not apply to the extent prohibited by applicable law.
These Terms are effective when Customer (1) clicks to accept a box to accept them, (2) executes an Order Form or pays a Raken invoice that references these Terms, or (3) uses free services provided by Raken (the “Effective Date”). If the individual accepting these Terms is accepting on behalf of Customer, such individual represents and warrants that such individual: (i) has the full legal authority to bind Customer to these Terms; (ii) has read and understand these Terms; and (iii) agrees, on behalf of Customer, to these Terms.
THESE TERMS ARE A LEGAL AGREEMENT. BY CLICKING “I AGREE,” EXECUTING AN ORDER FORM OR PAYING A RAKEN INVOICE THAT REFERENCES THESE TERMS, OR USING FREE SERVICES PROVIDED BY RAKEN, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF CUSTOMER. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ACCEPT THESE TERMS AND DO NOT USE OR ACCESS THE SERVICES.
1. PROVISION OF SERVICES
1.1 Services Use. Raken will make the Services available to Customer during the Subscription Term in accordance with this Agreement, and Customer may use the Services during the Subscription Term in accordance with this Agreement.
1.2 Services Availability. Raken will use commercially reasonable efforts to make the Services available to Customer 24/7, except for planned downtime and unavailability caused by a Force Majeure Event. Customer agrees that its purchase and use of the Services is not contingent on any future functionality or features of the Services.
1.3 Changes to Services. Raken reserves the right to alter product and services offerings (including the Services), specifications, and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
1.4 Discontinuation of Services. Raken will notify Customer at least two (2) months before discontinuing any Services (or associated material functionality) unless Raken replaces such discontinued Service or functionality with a materially similar Service or functionality. Nothing in this Section limits Raken’s ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section does not apply to pre-general availability Services, offerings, or functionality.
1.5 Software. If Raken makes Software available to Customer, including any third-party software, Customer’s use of such Software is subject to this Agreement.
1.6 Integration with Non-Raken Applications. The Services may contain features designed to interoperate, including via Raken’s application programming interface (API), with non-Raken applications. Raken cannot guarantee the continued availability of such features and may cease providing them without entitling Customer to any refund or other compensation, if for example, the provider of a non-Raken application ceases to make the non-Raken application available for interoperation with the Services. Raken is not responsible for the use or protection of Customer Data in any non-Raken application.
2. ACCOUNTS
2.1 Accounts. To use the Services, Customer must register for an Account and provide certain information, as prompted by the applicable registration form. Customer is responsible for the information it provides to create the Account. Customer represents and warrants that: (i) all required registration information that it submits is truthful, complete and accurate; (ii) Customer will maintain the accuracy of such information; and (iii) Customer’s use of the Services will not violate any United States or other applicable law or regulation (e.g., Customer is not located in an embargoed country or is not listed as a prohibited or restricted party under applicable export control laws and regulations). Customer is responsible for the security of its Passwords for the Account and for any use of its Account. Customer agrees to use strong Passwords with its Account and to maintain its Password securely to prevent others from gaining access. Customer shall not disclose the Account Login ID or Password to a third party and shall keep tight control over them (including a regular change of Password). Customer agrees to immediately notify Raken of any unauthorized use or suspected unauthorized use of its Account, or any other breach of security. Raken is not liable in any way for any loss or damage to Customer or other persons arising from Customer’s failure to comply with the above requirements.
2.2 Authorized Users. Authorized Users may use the Services in compliance with this Agreement. Customer is solely responsible for (i) Authorized Users’ compliance with this Agreement and (ii) the accuracy, quality and legality of the Customer Data and the means by which Customer acquired Customer Data. Customer also hereby agrees to be fully responsible for all actions taken by Authorized Users and others relating to use of the Account. If Customer discovers that there is an actual or possible violation of this Agreement committed by an Authorized User, Customer shall immediately inform Raken. Raken disclaims any liability for purchases made by an Authorized User through the Services, including after the Authorized User’s employment has been terminated.
2.3 No Transfer of Rights. No Authorized User may assign or transfer the right to use any Services to any third parties, nor may the Authorized User sublicense any right contained in any Services to any third parties unless explicitly permitted by Raken in writing. Any attempted assignment in violation of this Section is void.
2.4 Responsibility for Account Use. All acts based on the use of an Account shall be deemed to be taken by Customer or an Authorized User. In the case where a third party uses the Services by accessing an Account, Customer shall take full responsibility for the use. In the case where Raken is damaged by such acts, Customer shall compensate for the damage.
2.5 Protection of Customer Data. The Privacy Policy details Raken’s practices with respect to the data and information collected or obtained through the Services. The Privacy Policy is incorporated by reference into these Terms.
3. ACCESS TO SERVICES
3.1 Access and Use. Subject to this Agreement, Raken hereby grants Customer a limited, revocable, non-transferable, non-exclusive, non-sublicensable license to access and use the Services and Software during the Subscription Term in accordance with the applicable Documentation only for Customer’s internal business operations and for no other purpose, in each case subject to the terms and conditions of this Agreement. This license may be utilized by Customer and Authorized Users in accordance with the terms of this Agreement.
3.2 Automatic Software Updates. Raken may, from time to time during the Subscription Term, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Software. These may be automatically installed without providing any additional notice or receiving any additional consent. Customer consents to such automatic updates. Customer acknowledges that it may be required to install such updates to use the Services and Customer agrees to install promptly the updates that Raken provides. Customer’s continued use of the Services is its agreement to these Terms with respect to the Services.
3.3 Security. Raken implements security measures designed to protect Customer’s personal information held by Raken. However, Raken cannot guarantee that unauthorized third parties will never be able to defeat Raken’s security measures or use Customer’s personal information for improper purposes. Customer acknowledges that Customer provides Customer’s personal information at its own risk. Customer further acknowledges that Raken’s vendors and service providers may also hold Customer’s personal information and are responsible for taking their own security measures.
3.4 Outside Certain Countries. Customer may not use outside of or remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.5 Location Terms. The Services include and make use of Geo-Location Services. Customer’s use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, Customer is agreeing to be bound by Google’s Terms of Use. Geo-Location Services are used at Customer’s own risk and location data may not be accurate.
3.6 Content Accessible through the Services. The Services contain some third party content (such as text, images, videos, audio, or software). All such content is the sole responsibility of the person that makes it available. Raken may sometimes review content to determine whether it is illegal or violates our policies or these Terms, and we may remove or refuse to display content. Content accessible through the Services may be subject to Intellectual Property Rights, and, if so, Customer may not use it unless it is licensed to do so by the owner of that content or are otherwise permitted by law. Customer’s access to the content provided by the Services may be restricted, limited, or filtered in accordance with applicable law, regulation, and policy.
3.7 Submission of Content. Some of the Services allow the submission of content. Raken does not acquire any ownership of any Intellectual Property Rights in the content that you submit to the Services, except as expressly provided in the Terms. For the sole purpose of enabling Raken to provide, secure, and improve the Services (and the related service(s)) and only in accordance with Raken Privacy Policy, you give Raken a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free, and non-exclusive license to Use (as defined below) content submitted, posted, or displayed to or from the Services. As used in this Section, the term “Use” means use, host, store, modify, communicate, disclose, and publish. Before you submit content to the Services, you will ensure that you have the necessary rights (including the necessary rights from your Users) to grant us the license.
3.8 Retrieval of Content. When any other Raken customer’s or its user’s non-public content is obtained through the Services, Customer may not expose that content to any other Raken customers or their users or to third parties without explicit opt-in consent from such Raken customer.
3.9 Prohibitions on Content. Unless expressly permitted by the applicable content owner or by applicable law, Customer will not, and will not permit Authorized Users or others acting on your behalf to, do the following with content returned from the Services: (i) scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; (ii) copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party; (iii) misrepresent the source or ownership; or (iv) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all Fees specified in the Order Form(s) or as shown on the applicable Raken invoice. Except as otherwise specified in this Agreement, (i) payment obligations under this Agreement are non-cancelable and Fees paid are non-refundable, and (ii) quantities set forth in an Order Form or Raken invoice cannot be decreased or downgraded during the relevant Subscription Term.
4.2 Invoicing and Payment. Customer will provide Raken with valid and updated payment card information or bank account information. If Customer provides payment card or bank account information to Raken, Customer authorizes Raken to charge such payment card or bank account for all purchased services listed in the Order Form or shown on the applicable Raken invoice for the initial Subscription Term and each renewal Subscription Term (if any) as set forth in the Order Form or the applicable Raken invoice. Such charges shall be made in advance, either monthly, annually, or in accordance with any different billing frequency stated in the applicable Order Form or applicable Raken invoice. If Customer pays by a payment method other than a payment card, Raken will invoice Customer in advance and otherwise in accordance with the Order Form or applicable Raken invoice. Invoiced fees are due and payable upon receipt of the invoice, unless otherwise stated in the applicable invoice. Customer is responsible for providing complete and accurate billing and contact information to Raken and notifying Raken of any changes to such information.
4.3 Subscriptions. The Services are purchased as subscriptions for the Subscription Term stated in the Order Form or applicable Raken invoice, or in the applicable online purchasing portal. Subscriptions for Services may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added. Any added subscriptions will co-terminate on the same date as the underlying subscriptions.
4.4 Payment Disputes and Refunds. Any payment disputes must be submitted in good faith before the payment due date. If Raken, having reviewed the dispute in good faith, determines that certain billing inaccuracies are attributable to Raken, Raken will issue a corrected invoice or a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Raken will apply the credit memo amount to a disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Refunds given by Raken for billing inaccuracies under this Section will only be in the form of credit for the Services. Nothing in this Agreement obligates Raken to extend credit to any party.
4.5 Overdue Payments. If any invoiced amount is not received by Raken by the due date, Raken may, without limiting Raken’s rights or remedies: (i) for each month such amount remains overdue, assess a late charge on the overdue amount equal to the lesser of 1.5% per month or the maximum monthly rate that is permitted by law; and (ii) Raken may condition future subscription renewals on payment terms shorter than those specified elsewhere in these Terms. Such late charges must be paid when Raken invoices for them. In addition, Customer must pay for all reasonable costs Raken incurs to collect any past due amounts, including attorneys' fees, court costs, legal expenses and fees to third party debt collection companies.
4.6 Suspension of Service and Acceleration. In the event of any late payment for the Services, Raken may, without limiting its other rights and remedies, accelerate Customer’s unpaid Fees obligations for the Services so that all such obligations become immediately due and payable, and suspend all Services until such amounts are paid in full.
4.7 Taxes. Customer is responsible for any Taxes and will pay Raken for the Services without any reduction for Taxes. If Raken is obligated to pay or collect any Taxes for which Customer is responsible under this section, Raken will invoice Customer and Customer will pay such Taxes unless Customer provides Raken with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will provide Raken with any applicable tax identification information that Raken may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. For clarity, Raken is solely responsible for taxes assessable against it based on its own income, property and employees.
5. CUSTOMER OBLIGATIONS
5.1 Compliance. Customer will (i) ensure that Customer and its Authorized Users’ use of the Services complies with this Agreement, (ii) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (iii) promptly notify Raken of any unauthorized use of, or access to, the Services, Account, or Password of which Customer becomes aware. Raken reserves the right to investigate any potential violation of this Agreement by Customer, which may include reviewing the Account and its usage.
5.2 Privacy. Customer is responsible for any consents and notices required to permit (i) Customer’s use and receipt of the Services and (ii) Raken’s accessing, storing, and processing of information and data provided by Customer under the Agreement
5.3 Documentation. Raken may provide Documentation for Customer’s use of the Services. Customer is hereby authorized to use such Documentation solely internally and only in connection with Customer’s use of the Services.
5.4 System Requirements. Customer is responsible for, and the Services may not be accessible without, providing or obtaining each of the following: (i) a working network in your office, place of work, job site, or other location that is positioned to communicate reliably; (ii) an Account; (iii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Services); and (iv) other system elements that may be specified by Raken. Further, Customer understands and agrees that it is required to have an adequate and working internet connection for downloading and using the Services. It is Customer’s responsibility to ensure that it has all required system elements and that they are compatible and properly configured.
5.5 Usage Restrictions. Customer will not, and will not allow Authorized Users to, do any of the following: (i) license, sell, resell, rent, lease, transfer, assign, distribute, host any of the Services or include any Services in a service bureau or outsourcing offering; (ii) use the Services for any purposes other than the limited purposes expressly permitted in this Agreement; (iii) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (iv) except as permitted by law notwithstanding this prohibition and then only as may be necessary for the performance of the Services, modify, make derivative works of, disassemble, decompile, attempt to derive the source code of, decrypt, modify, reverse compile or reverse engineer any part of the Services or Raken intellectual property, or allow or enable any other party to do so; (v) frame or mirror any part of the Services; (vi) access the Services in order to build a similar or competitive service or product; (vii) except as expressly stated herein or permitted by the Authorized User functionality of the Services, copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including any videos, any of the Services or content available therefrom; (viii) interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (ix) not to access (or attempt to access) any of the Services by means other than through the user interface that is provided by Raken for such purpose; (x) not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services; or (xi) access or use the Services (a) in violation of this Agreement; (b) in a manner intended to avoid incurring Fees; (c) in a manner that breaches, or causes the breach of, any applicable laws, including Export Control Laws; or (d) for High Risk Activities. Any future release, update or other addition to functionality of the Services shall be subject to these Terms. Each Authorized User is permitted to use the Services concurrently on a maximum of two devices.
5.6 Other Prohibited Conduct. Customer warrants, represents, and agrees that it will not allow Authorized Users to use the Services in any way that (i) infringes or violates the Intellectual Property Rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including any employee or representative of Raken; (v) introduces a virus, Trojan Horse, worm, time bomb or other harmful computer code, file, software or program that can damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Products, the Product Software or any other system, device or property; (vi) risks the security of Customer’s Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) denigrates or disrupts any network capacity or functionality; or (xi) engages in remote monitoring to provide key management, security or other professional services for anyone
5.7 Response to Violations. In the case where Raken decides that the act of Customer or Authorized User violates the provisions of these Terms, Raken may take measures that it decides appropriate, such as suspension of the use of the Services or forced withdrawal after deleting all or part of Customer Data without the prior notice to Customer or User. Raken shall not be held liable in any way for the liability or damage caused by the measures it may take. Raken’s measures taken will not operate to discharge Customer from liability in the case where there is liability, harm or damage to Raken or a third party caused by the measures taken by Raken. In the case where Customer causes liability due to violation of the Terms or causes a dispute with a third party, Customer shall resolve the issue at its expense and shall not impose any responsibilities on Raken. Where Raken is held liable by other customers or third parties due to Customer’s violation of these Terms, Customer shall resolve the dispute at its expense and shall not impose any responsibilities on Raken, and Customer shall indemnify, release, and hold harmless Raken against any and all such liability and claims related thereto.
5.8 Copyright. Raken responds to notices of alleged copyright infringement and terminates the Accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.
6. OWNERSHIP AND INTELLECTUAL PROPERTY
6.1 Ownership; Reservation of Rights. Subject to the limited rights expressly granted hereunder, Raken reserves all of its rights, title and interest in and to the Services, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Ownership in all updates, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of Raken, as well as any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer, will immediately vest in Raken upon creation or communication to Raken, as applicable.
6.2 Customer Data. Subject to the limited license granted herein, Raken does not acquire any right, title or interest in any Customer Data or Customer Confidential Information. Customer grants Raken, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, process, analyze and display Customer Data as appropriate for Raken to provide, improve and ensure proper operation of the Services in accordance with this Agreement.
6.3 Statistical Usage Data. Notwithstanding anything to the contrary, Raken shall have the right collect, analyze, use, and otherwise process data and other information relating to the provision, use and performance of various aspects of the Services and the Software and related systems and technologies (including Customer Data), and, Raken will be free (during and after the term of this Agreement) to use such information and data for its own internal business purposes in aggregated and anonymized form, including to improve and enhance the Services and the Software, to train artificial intelligence models, and for other development, diagnostic and corrective purposes in connection with the Services and other Raken offerings, training and developing machine learning algorithms that support the Services and the Software, but are not directly usable by end users, improving product performance, and verification of security and data integrity. No rights or licenses are granted by either party hereto except as expressly set forth herein.
6.4 Marketing. Raken may use Customer Data to send Customer information about Raken’s and third parties’ products and services as permitted by applicable law and as described in the Privacy Policy. Where required by applicable law, Raken will obtain consent prior to sending marketing communications. If Customer adds third party contact information to the Services, Customer acknowledges Raken may use such contact information as permitted by applicable law and as described in the Privacy Policy and Customer warrants and represents that it has obtained all necessary consents prior to doing so.
6.5 Limits. Customer may neither use the content of the Services in any other public or commercial way (other than for Customer’s own internal business purposes), nor may Customer copy or incorporate any of the videos, documents, manuals, specifications sheets, or other content available through the Services into any other work, without the written consent of Raken. Raken and its licensors retain full and complete title to all content on the Services, including any videos, documentation, documents and all data. Customer must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
6.6 Customer Content and Data. Where applicable, Customer acknowledges that the content, data and communications which Customer uploads in, or generates with, the Services (including via a Mobile App) shall vest, and remain vested, in Customer. Raken and its Affiliates, contractors, subcontractors, licensors, service providers, and our partners are granted a license to use such content, data and communications for the purposes of making the Services available to Customer in accordance with these Terms and the Privacy Policy
6.7 Trademark Information. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are the property of Raken or of their respective holders. Customer is not permitted to use any of the Marks without the applicable prior written consent of Raken or such respective holders.
6.8 Feedback. Customer may choose to, or Raken may invite Customer to, submit comments, suggestions, feedback, feature requests, recommendations, or ideas about or for the Services, including any relating to the performance, features, functions and availability of the Services or how to improve any of the Services (collectively “Ideas”). By submitting any Ideas, Customer agrees that its submissions are non-confidential, voluntary, gratuitous, unsolicited and may be freely and fully used and exploited without restriction and will not place Raken under any fiduciary or other obligation. Raken may use, copy, modify, disclose, publish, redistribute and otherwise exploit the Ideas for any purpose and in any way without payment of royalties or any other compensation to Customer. Raken is not obligated to hold, keep confidential, use, display, reproduce, implement, or distribute, or otherwise act upon any Ideas. Nothing herein shall be interpreted as imposing an obligation on Customer to provide Ideas to Raken or for Raken to use any Ideas.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party or any of its Affiliates (“Disclosing Party”) 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 of Customer includes Customer Data; Confidential Information of Raken includes the services and content, and the terms and conditions of this Agreement and all Order Forms and Raken invoices (including pricing). Confidential Information of each party includes any technical, financial, economic, marketing, strategic, business, product, design, or operational information. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of this Agreement, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of, or reference to, any Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that is uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information for any purpose outside the scope of this Agreement and (ii) except as otherwise expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those herein. Neither party will disclose the terms of this Agreement or any Order Form or Raken invoice to any third party other than its Affiliates, legal counsel or accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent compelled by law or legal process to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. TERM AND TERMINATION
8.1 Term of Agreement. This Agreement commences on the date Customer first receives access to the Services and will remain in full force and effect as long as Customer continues to access or use the Services, or until terminated in accordance with this Section 8 (Term and Termination).
8.2 Term of Purchased Subscriptions. The initial Subscription Term will begin and end in accordance with the start date and end date set forth in the applicable Order Form or Raken invoice. Except as otherwise set forth in an Order Form, all subscriptions will automatically renew for additional periods of one (1) year each unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Customer acknowledges and agrees that in the case of a Subscription Term greater than one (1) year, Raken has provided discounted pricing to Customer in exchange for Customer’s contractual Subscription Term; accordingly, the Subscription Term and all scheduled payments thereunder will be strictly enforced.
8.3 Suspension or Termination of Access. At any time, Raken may (i) suspend or terminate Customer’s rights to access or use the Services, or (ii) terminate this Agreement if Raken, in good faith, believes that Customer has used the Services in violation of this Agreement, including any incorporated guidelines, terms or rules.
8.4 Automatic Termination. In the event any of the following events occur with respect to Customer, Raken may terminate Customer’s access to the Services by giving notice thereof in writing or e-mail to Customer, without the need to make any request for correction: (i) Customer has stopped its payments or has become unable to pay its debts or fails to pay any amount when due; (ii) any check or other form of payment of Customer becomes dishonored; (iii) any petition for seizure, provisional seizure, or auction has been filed, or any disposition for delinquent taxes and public dues has been issued; (iv) any petition for the commencement of bankruptcy, corporate reorganization proceedings, or civil rehabilitation proceedings has been filed, or any serious deterioration in the state of credit has occurred; (v) Customer’s business license has been rescinded or suspended by a competent authority; (vi) a resolution for dissolution, capital reduction, or transfer of all or a significant part of Customer’s business has been adopted; or (vii) any event equivalent to the preceding items occurs.
8.5 Termination for Breach. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party if the other party is in material breach of this Agreement and fails to cure such breach prior to the expiration of such thirty (30) days’ period.
8.6 Termination Due to Applicable Law. Raken may terminate this Agreement immediately on written notice to Customer if Raken reasonably believes that continued provision of any Services used by Customer would violate any applicable laws.
8.7 Effect of Termination. Upon the termination of this Agreement for any reason, unless otherwise agreed by the Parties in writing, Customer’s Account and right to use the Services, or access any information provided through the Services, will automatically terminate and all Fees owed by Customer to Raken are immediately due upon Customer’s receipt of the final electronic bill or final invoice. Upon request by Customer made within 90 days after the effective date of termination or expiration of this Agreement and payment of the applicable fee, Raken will make Customer Data available to Customer for download or export. Raken reserves the right to charge Customer a reasonable fee for data transfer services. After such 90-day period, Raken will have no obligation to maintain or provide any Customer Data. If Raken is required to retain a copy of Customer Data for legal purposes, such copy remains subject to the confidentiality provisions of this Agreement. Raken shall not be held liable in any way for deletion, loss, or destruction of data and information of Customer.
8.8 Refund or Payment upon Termination. If Customer terminates this Agreement due to Raken’s material breach, Raken shall refund Customer the prorated portion of prepaid Fees for unused services. If Raken terminates this Agreement due to Customer’s material breach, Customer shall pay any unpaid Fees. Termination will not relieve Customer of its obligation to pay all Fees owing for the period prior to the effective date of termination.
8.9 No Liability. Raken is not liable for any damage that may be incurred by Customer or its Authorized Users due to the termination of any rights or access to the Services, or this Agreement, in whole or in part, in accordance with this Section 8 (Term and Termination).
8.10 Surviving Provisions. The Sections of this Agreement which by their nature should survive termination of this Agreement will survive, including Sections titled “Fees and Payment,” “Ownership and Intellectual Property,” “Confidentiality,” “Effect of Termination,” “No Liability,” “Surviving Provisions,” “Representations, Warranties, Exclusive Remedies, and Disclaimers,” “Limitation of Liability,” “Indemnification,” and “General Provisions” will survive any termination or expiration of this Agreement.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
9.1 Representations. Each Party represents that it has the legal power and authority to enter into and perform under this Agreement.
9.2 Raken Limited Warranties. Raken warrants that during an applicable Subscription Term the Services will perform substantially in accordance with the applicable Documentation. For any breach of a warranty above, Customer’s exclusive remedies are those as described in Section 8.8 (Refund or Payment upon Termination). To receive warranty remedies, Customer must promptly report deficiencies in writing to Raken, but no later than thirty (30) days of the first date the deficiency is identified by Customer. The warranty set forth in this Section shall apply only if the applicable Services has been utilized in accordance with their applicable Documentation, this Agreement, and all applicable laws.
9.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED FOR CUSTOMER’S CONVENIENCE, “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS, AND RAKEN MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUIET ENJOYMENT, SATISFACTORY QUALITY, COMPATIBILITY WITH ANY EQUIPMENT USED, LEGALITY, NON-INFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
RAKEN, AND ITS LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (i) WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS; (ii) WILL BE COMPATIBLE WITH CUSTOMER’S NETWORK, COMPUTER (INCLUDING LAPTOP) OR MOBILE DEVICE; (iii) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (iv) WILL BE ACCURATE OR RELIABLE; (v) OR THAT RAKEN’S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD-PARTY ACCESS TO CUSTOMER DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RAKEN OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY. THE LIMITED WARRANTIES PROVIDED IN SECTION 9.2 (RAKEN LIMITED WARRANTIES) ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
RAKEN DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE SERVICES (INCLUDING THIRD-PARTY PRODUCTS AND SERVICES CONNECTED WITH THE SERVICES), OR ANY LINKED WEBSITE OR SERVICE, AND RAKEN WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES. RAKEN IS NOT LIABLE FOR ANY SPECIFICATION, OPERATION OR FUNCTION, ETC. OF SUCH APPLICATION OR OTHER SOFTWARE, OR ITS CONNECTION OR LINKAGE WITH ANY SERVICE OR APPLICATION.
RAKEN MAY CHANGE THE CONTENTS OF ANY OF THE SERVICES AND SUSPEND OR DISCONTINUE THE PROVISION OF ANY OF THE SERVICES AT ANY TIME WE DEEM IT NECESSARY, WITHOUT NOTIFYING CUSTOMER. IN THE EVENT OF ANY SUSPENSION OR DISCONTINUATION OF THE PROVISION OF ANY OF THE SERVICES, RAKEN IS NOT LIABLE TO ANY CUSTOMER IN ANY WAY EXCEPT FOR PROVIDING A REFUND, IF WE DEEM IT APPROPRIATE, OF ANY MONTHLY OR OTHER FEE THAT SUCH CUSTOMER HAS PAID TO US FOR THE PERIOD DURING WHICH SUCH SUSPENSION OR DISCONTINUATION HAS OCCURRED.
RAKEN IS NOT RESPONSIBLE FOR RETAINING ANY BACK-UP OF ANY CUSTOMER DATA. CUSTOMER SHALL MAKE REGULAR BACKUP COPIES OF THE RELEVANT CUSTOMER DATA UNDER ITS OWN RESPONSIBILITY.
RAKEN DOES NOT MAKE ANY GUARANTEE AS TO THE FREENESS FROM INFECTION WITH ANY COMPUTER VIRUS OF THE EXTERNAL STORAGE DEVICE (SUCH AS USB MEMORY) THAT CUSTOMER MAY CONNECT TO AN IOT DEVICE OR USER TERMINAL IN ORDER TO TRANSMIT THE DATA, OR OF ANY DATA TRANSMITTED THEREBY, AND RAKEN IS NOT LIABLE FOR ANY DAMAGE CAUSED BY SUCH INFECTION.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF LIABILITY. RAKEN IS LIABLE TO CUSTOMER, IN RELATION TO THE USE OF THE SERVICES, ONLY FOR DIRECT DAMAGE ACTUALLY INCURRED BY CUSTOMER THAT DIRECTLY ARISE FROM THE BREACH BY RAKEN OF THIS AGREEMENT RELATED TO CUSTOMER’S USE OF THE SERVICES, AND FOR NO OTHER REASON, REGARDLESS OF THE LEGAL GROUND OF LIABILITY. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY
10.2 NO SPECIAL DAMAGES, TOTAL LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL (i) RAKEN BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, EVEN IF RAKEN KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) RAKEN’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (i) ABOVE, ARISING FROM OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO FIFTY DOLLARS (USD $50) OR THE SUM OF THE FEES PAID BY CUSTOMER FOR ANY SERVICES PROVIDED UNDER THE SERVICE SPECIFIC TERMS UNDER WHICH THE CLAIM AROSE WITHIN THE LAST 12 MONTHS THAT DIRECTLY RELATES TO SUCH DAMAGES, WHICHEVER IS GREATER. THE LIMITATIONS IN THIS AGREEMENT APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER
10.3 NO LICENSOR/SUPPLIER LIABILITY. RAKEN DISCLAIMS ALL LIABILITY OF ANY KIND OF RAKEN’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL RAKEN BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES
10.4 APPLICABLE TO MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER UNDERSTANDS AND AGREES THAT THIS LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EVEN IF RAKEN IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY
10.5 WRITTEN NOTICE REQUIRED. CUSTOMER MAY NOT CLAIM ANY DAMAGES AGAINST RAKEN UNLESS CUSTOMER SUBMITS A WRITTEN CLAIM TO RAKEN WITHIN THE EARLIER OF THE EXPIRATION OF THREE (3) MONTHS AFTER CUSTOMER HAS INCURRED ANY LOSSES OR DAMAGES, OR THE EXPIRATION OF THREE (3) MONTHS AFTER THE AGREEMENT HAS EXPIRED OR BEEN TERMINATED.
11. INDEMNIFICATION
11.1 Indemnification by Raken. Raken will defend any claim, action, lawsuit, or any other legal action (“Claim”) brought against Customer by a third party alleging that Customer’s use of the Services infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Raken in writing of, a Claim Against Customer, provided Customer (a) promptly gives Raken written notice of the Claim Against Customer, (b) gives Raken sole control of the defense and settlement of the Claim Against Customer, and (c) gives Raken all reasonable assistance, at Raken’s expense. If Raken receives information about an infringement or misappropriation claim, Raken may, at its sole option and expense: (i) procure for Customer the right to continue to use the Service; (ii) modify the Service to make it non-infringing; (iii) replace the affected aspect of the Service with non-infringing technology having substantially similar capabilities; or (iv) terminate this Agreement upon thirty (30) days written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscription. The above defense and indemnification obligations do not apply to, and Raken will have no liability with respect to, any claim arising in whole or in part due to (1) any modification of the Service made by anyone other than Raken, (2) a Claim Against Customer arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by Raken, if the Service or use thereof would not infringe without such combination, (3) A Claim Against Customer arises from Services under an Order Form for which there is no charge, or (4) A Claim Against Customer arises from Content, a Non-Raken Application or Customer’s breach of this Agreement.
11.2 Indemnification by Customer. Customer will defend Raken against any Claim brought against Raken by a third party to the extent such claim relates to: (a) any Customer Data or Customer’s use of Customer Data; (b) Customer’s and/or its Authorized Users’ use of the Services; (c) Customer’s and/or its Authorized Users’ violation of this Agreement; (d) Customer’s and/or its Authorized Users’ violation of any law or the rights of any third party; or (e) third party applications built by or on behalf of Customer that interoperate with the Services (each a “Claim Against Raken”). Customer will indemnify Raken from any damages, attorney fees and costs finally awarded against Raken as a result of, or for any amounts paid by Raken under a settlement approved by Customer in writing of, a Claim Against Raken, provided Raken (i) promptly gives Customer written notice of the Claim Against Raken, (ii) gives Customer sole control of the defense and settlement of the Claim Against Raken (except that Customer may not settle any Claim Against Raken unless Customer unconditionally releases Raken of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense.
11.3 Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
12. MOBILE APPS
12.1 Mobile Device and Upgrades. Raken makes available Mobile Apps to access certain Services via a mobile device. To use the Mobile Apps, Customer must have a mobile device that is compatible with the mobile service. Raken does not warrant that the Mobile Apps will be compatible with Customer’s mobile device. Customer’s license rights with respect to the Mobile Apps are as set forth in these Terms. Customer acknowledges that Raken may from time to time issue upgraded versions of the Mobile App and may automatically electronically upgrade the version of the Mobile App that Customer is using on mobile devices. Customer consents to such automatic upgrading on Customer’s mobile devices and agrees that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of a Mobile App or any copy thereof, and Raken and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile App (and any copy of the Mobile App). Standard carrier data charges may apply to your use of the Mobile App
12.2 Access to Mobile Apps. Customer acknowledges and agrees that use of certain Mobile Apps requires access granted by Customer who has purchased a subscription, accepted these Terms, and as such is entitled to invite Authorized Users to register for the Mobile App. Customer understands that certain Authorized Users are only able to use the Mobile App when Customer with a paid subscription for the Mobile App has sent an invitation via e-mail to create login credentials for signing into and using the Mobile App. Any Authorized User who believes they should be authorized to use a Mobile App on behalf of Customer should contact Customer to obtain login credentials. Raken is never responsible for providing Customer with such login credentials, nor does Raken decide which role Customer has within the Mobile App and which features Customer is able to use and/or access
12.3 iOS Apps. The following service specific terms and conditions apply with respect to any Mobile App that Raken provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”): (i) Customer acknowledges that these Terms are between Customer and Raken only, and not with Apple, Inc. (“Apple”); (ii) Customer’s use of Raken’s iOS App must comply with Apple’s then-current App Store Terms of Service; (iii) Raken, and not Apple, is solely responsible for Raken’s iOS App and the Services and content available thereon. Customer acknowledges that Apple has no obligation to provide maintenance and support services with respect to Raken’s iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Raken’s iOS App, (iv) Customer agrees that Raken, and not Apple, is responsible for addressing any claims by Customer or any third-party relating to Raken’s iOS App or Customer’s possession and/or use of Raken’s iOS App, including: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Raken as provider of the iOS App; (v) Customer agrees that Raken, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to Raken’s iOS App or Customer’s possession and use of Raken’s iOS App; (vi) Customer represents and warrants that (a) Customer is not located in 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; and (b) Customer is not listed on any U.S. Government list of prohibited or restricted parties; (vii) Customer agrees to comply with all applicable third-party terms of agreement when using Raken’s iOS App (e.g., Customer must not be in violation of Customer’s wireless data service terms of agreement when using the iOS App); (viii) Customer and Raken agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to Customer’s license of Raken’s iOS App. Upon acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as they relate to Customer’s license of the iOS App as a third-party beneficiary thereof
12.4 Android Apps. The following service specific terms and conditions apply with respect to any Mobile App that Raken provides to Customer designed for use on an Android-powered mobile device (an “Android App”): (i) Customer acknowledges that these Terms are between Customer and Raken only, and not with Google, Inc. (“Google”); (ii) Customer’s use of Raken’s Android App must comply with Google’s then-current Android Market Terms of Service; (iii) Google is only a provider of the Android Market where you obtained the Android App. Raken, and not Google, is solely responsible for Raken’s Android App and the Services and content available thereon. Google has no obligation or liability to Customer with respect to Raken’s Android App or these Terms; (iv) Customer acknowledges and agrees that Google is a third-party beneficiary to the Terms as they relate to Raken’s Android App.
13. GENERAL PROVISIONS
13.1 Assignment. Customer may not assign to any other party this Agreement or any of its rights or obligations hereunder without Raken’s prior written consent, not to be unreasonably withheld. Raken may assign to any other party this Agreement or any of its rights or obligations hereunder, in whole or in part, without Customer’s prior consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Assignment will not relieve Customer of its obligation to pay fees incurred before the assignment. Any attempted assignment in violation of this paragraph is void.
13.2 Entire Agreement and Order of Precedence. This Agreement, together with these Terms and all referenced and attached exhibits, schedules, and attachments and all fully executed Order Forms, contains the entire agreement, and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement supersedes all prior and contemporaneous agreements, arrangements, understandings, proposals or representations, whether written or oral, concerning its subject matter and is entered into without reliance on any promise or representation other than those expressly contained in this Agreement. The parties agree that any pre-printed or boilerplate term or condition stated in a party’s purchase order form or other ordering documents (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) exhibits, schedules, and attachments to these Terms, and (3) the main body of these Terms.
13.3 Force Majeure. Raken shall not be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, if such delay or failure to perform is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance reasonably beyond the control of the party to be charged (a “Force Majeure Event”).
13.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.6 Notices. Notices to Customer will be delivered via email or overnight delivery service to the address provided by Customer. Notices to Raken will be delivered via email to support@rakenapp.com. or by overnight delivery service to Raken, Inc. Attn. Customer Success Department, 703 Palomar Airport Rd., Suite 300, Carlsbad, CA 92011. All notices must be in writing and will be effective when received.
13.7 Waiver. Any failure by Raken to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on Raken unless made in writing.
13.8 Titles and Headings; Interpretation. The section titles in these Terms are for convenience only and have no legal or contractual effect. For the purpose of the construction and interpretation of this Agreement, the word “including” (and variations thereof such as “include” and “includes”) and “such as” will not be deemed to be terms of limitation, but rather to be followed by the words “without limitation.”
13.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
The obligations that by their terms or nature continue and survive, including the warranty disclaimer, consequential damages waiver, limitation on liability and indemnification provisions and general terms, will survive any expiration or termination of these Terms.
13.10 Export Control. Each Party shall comply with all applicable export laws and regulations of the United States and other jurisdictions. Raken and Customer each represents that it is not on any U.S. government denied-party list. Customer shall not, and shall ensure that Authorized Users do not, access the Services in a U.S.-embargoed country or region, or in violation of any U.S. export law or regulation.
13.11 Anti-Corruption. Neither party has received or been offered any bribe, kickback, payment, gift, or other similar payment or transfer of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
13.12 Governing Law. This Agreement, , and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or Customer’s use of the Services shall be governed by and construed, interpreted and resolved in accordance with the substantive laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in San Diego, California, and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
13.13 Subcontracting. Raken may subcontract obligations under the Agreement. Without limitation, Raken may involve subcontractors to provide the Services, including hosting, data center, database and security service providers.
13.14 Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Raken may seek injunctive or other equitable relief to protect its confidential information and Intellectual Property Rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
14. DEFINITIONS
“Account” means Customer’s account for the Services.
“Affiliate” means any entity that controls, or is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of such entity.
“Agreement” means these Terms and all applicable Order Forms.
“Authorized User” means an individual employee or contractor of Customer who is authorized by Customer to access or use the Services for whom Customer has purchased a subscription and to whom Customer has supplied a user identification and password. For purposes of this Agreement, the term Authorized User includes Collaborator Users and Worker Users.
“Collaborator User” means a third party service provider who is authorized by Customer to submit data to an Authorized User. A Collaborator User is typically a subcontractor of Customer.
“Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity.
“Customer Data” means any content, data, information, and other materials submitted by Customer or an Authorized User to the Services.
“Documentation” means the user guides, user manuals and other written documentation describing the Services that Raken makes available to a Customer or its Authorized Users.
“Export Control Laws” means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.
“Fees” means the applicable fees for the Services plus any applicable Taxes.
“Geo-Location Services” means certain functionality and services provided by third parties that allow Raken to include maps, geocoding, places and other content from Google as part of the Services.
“High Risk Activities” means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
“Intellectual Property Rights” means copyright rights (including the right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), patent rights (including the right to make, use, offer for sale, sell, and import), utility model rights, design rights, trademark rights (including trade names, trademarks, service marks, logos, and trade dress), trade secrets, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill, and other intellectual property rights as may exist now or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States, or any other state, country or jurisdiction throughout the world.
“Login ID” means a code used to access the Services that is used to distinguish each user from other users for using any of the Services and the email address of the User registered at the time the User created an account.
“Mobile App” means any Software that may be downloaded to a smartphone or tablet.
“Order Form” means an ordering document entered into and executed by the parties or an online order submitted through Raken’s online purchasing portal, which, amongst other things, sets forth the Services to be provided to Customer under such ordering document or online order.
“Password” means a code used to access the Services that is, in combination with login ID, used to distinguish each user from other users and that is registered at the time the user creates the account using the arbitrary combination of English one-byte characters and symbols. Passwords shall use a combination of upper- and lower-case letters, numbers and symbols.
“Privacy Policy” means Raken’s then-current privacy policy, which details Raken’s practices with respect the data and information collected or obtained through the Services.
“Raken” means Raken, Inc. and its subsidiaries and affiliates, as applicable.
“Services” means the then-current cloud-based services identified in an Order Form or on a Raken invoice, or provided to Customer under a free trial and made available by Raken to Customer under this Agreement. The Services include the Software made available or accessed in connection therewith, including the Software for the Services, and Mobile Apps.
“Software” means any software (including downloadable software) provided by on behalf of Raken in connection with the Services, and any updates Raken may make to such software from time to time.
“Subscription Term” means the initial or renewal period of the subscription to a Services offering as set out in the applicable Order Form or on a Raken invoice.
“Taxes” means all government-imposed taxes, except for taxes based on Raken’s net income, net worth, asset value, property value, or employment.
“Worker User” means an employee of Customer limited solely to the use of the time clock functionality with no access to any other functionality of the Services.