Terms of service
EFFECTIVE: April 25, 2021
The following Terms of Service ("ToS") constitute a legally binding agreement between you ("Customer" or "You" or similar) and Rapticore Inc., a Delaware corporation (“Rapticore” or “Us” or similar), governing your use of the Services (as defined below).
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, OR ACCESSING OR USING THE SITE OR THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE ToS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE ToS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR THE SERVICES. These ToS are effective as of the date You first click “I agree” (or similar button or checkbox) or use or access the Site or the Services, whichever is earlier (the “Effective Date”). If You accept or agree to these ToS on behalf of Your employer or another legal entity, You represent and warrant that (i) You have full legal authority to bind Your employer or such entity to these ToS; (ii) You have read and understand these ToS; and (iii) You agree to these ToS on behalf of the party that You represent. In such event, “Customer” or “You” or similar will refer and apply to Your or employer or such other legal entity.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND RAPTICORE CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 9). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
Rapticore may update, change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement from time to time, and review, improve, modify or discontinue, temporarily or permanently, the Services or any content or information through the Services from time to time, effective with or without prior notice and without any liability to Rapticore. When non-material changes are made to this Agreement, the most current version of this Agreement will be posted on the Site. You agree to regularly check the Site to view the then-current Agreement. In such case, Your continued use of the Services constitutes Your acceptance of such changes. Furthermore, any material or non-material change of this Agreement will be automatically applicable for Customer who register to use the Services after such change. However, if Rapticore makes any material changes to this Agreement when You have already registered to use the Services at the date of such material change(s), You will be noticed via an in-product notification of such change(s) and You will be required to provide consent to the updated version of this Agreement before further use of the Services. If You do not agree to such change(s) after receiving a notice of such change(s), Your Services will be automatically terminated and You shall stop using the Services.
"Account" means the customer account You have created on the Site, which allows You to access the Services.
"Affiliate" means any Person which controls, is controlled by, or is under common control with a Party.
"Authorized Users" mean users authorized by the Customer to access and use the Platform, the Software and the Services, which may include - without limitation of the number of users - Customer's employees, Affiliates, Affiliates' employees and any third parties, subject to the compliance with the provisions of these ToS and the limitations set forth in the applicable Plan.
“Cloud Accounts” means the customer accounts at a Cloud Infrastructure Service provider.
"Confidential Information" means any information of a confidential nature that is communicated by the disclosing Party to the receiving Party or accessed by the receiving Party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would, to a reasonable recipient, be deemed confidential or proprietary, including, without limitation, the Platform, the Software and the Documentation.
"Customer Data" means the information, Personal Data, materials, records and documents, including Confidential Information, regarding or pertaining to the Customer available in Customer Properties.
"Customer Properties" or "Properties" means the applications and corresponding instances on which You use the Services, which are owned by You.
"Documentation" means the most current version of Rapticore online documentation and/or guidelines published and made generally available on the Site.
"Intellectual Property Rights" means any unpatented inventions, patent applications, patents, design rights, Documentation, blog content, copyrights, trademarks, Rapticore marks, corporate name and trade names, domain name rights, mask work rights, drawings and designs, semiconductor topographies, database rights, domain names, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, in each case whether applied for or not, registered or not, with all the priority rights attached thereto, divisions, continuations, continuations-in-part, renewals, re-issuances and extensions of the forgoing (as applicable) now existing or hereafter filed, issues or acquired, relating to any creations, and all other forms of equivalent protection of creations in force anywhere in the world.
"Party" means either You, the Customer, or Rapticore, as the context requires.
"Person" means a partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity.
"Personal Data" means any information relating to an identified or identifiable person as defined by applicable data protection legislation, being understood that in any case an identifiable natural person shall refer at least to a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, including coded or pseudonymous data as long as long it is possible from the use of such data to reattribute data to an identified or identifiable individual as defined above.
"Platform" means the SaaS service owned and operated by Rapticore in accordance with these ToS.
"Services" means the services provided by Rapticore under these ToS as further described at rapticore.com/overview, including, the Software, the Platform and the Dashboard.
"Site" means the website rapticore.com or any related website.
"Software" means all of Rapticore's proprietary technology (including software, hardware, products, processes, patents, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information, protected or not by Intellectual Property Rights) that Rapticore may make available to You from time to time in accordance with the ToS.
"Term" is defined in section 5.1.
"Users” means users handled by Customer Properties on which the Services are used.
2.1. Account, Passwords and Security of Account Information
In order to use the Services, You must request an instance of the Platform and register on the Platform. A Platform form request would require you to enter Your name, Your company name, and Your company email address. To complete the registration process, You need to enter Your email address and create a password (the "Account Information"). The requesting User will be considered the site admin and would have privileges to configure and invite other Users and Affiliates to the Platform all of whom will be covered by the same ToS. By using the Services, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account Information to keep it accurate, current and complete.
The Account Information is personal and may only be used by You and/or Your Authorized Users. You and Your Authorized Users shall maintain the confidentiality of the Account Information and shall be solely responsible for all activities that occur under Your Account Information. You shall notify Rapticore immediately of any unauthorized use or loss of any Account Information or any other breach of security with respect to Your use and the Authorized Users' use of the Services. Rapticore may suspend Your access to the Services or terminate Your Account at any time if Rapticore reasonably believes that such Account is being misused, used by an unauthorized user, or if You have materially breached these ToS. Customer shall indemnify and hold Rapticore harmless of any improper or unauthorized use of the Services resulting from any act or omission of Customer or Authorized User.
2.2. Rapticore Services
Rapticore provides Services aimed at reinforcing the security of Customer's Properties and protecting Customer's Properties and Users against security threats. Rapticore’s Services are subject to these ToS.
2.3 Services Plans
Rapticore offers a variety of Services plans: "Teams", "Business" and "Enterprise" plans as more fully described on the following page of the Site: rapticore.com/pricing (the "Plans"). Other specific Service features (including plugins) are granted according to the selected plan.
2.4 Support Services
If included in the Plan subscribed to by Customer, Rapticore will use reasonable efforts to provide support for the Rapticore Platform, Software, and Services during the Term.
2.5 Links to Third-Party Websites
The Services may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Rapticore or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Rapticore does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Rapticore is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Rapticore has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Services at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Rapticore expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Services. You hereby agree to hold Rapticore harmless from any liability that may result from the use of links that may appear on the Services.
As part of the functionality of the Services, you may link your Account with online accounts you may have with third-party service providers (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Services; or (ii) allowing Rapticore to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Rapticore and/or grant Rapticore access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Rapticore to pay any fees or making Rapticore subject to any usage limitations imposed by such third-party service providers. By granting Rapticore access to any Third-Party Accounts, you understand that (1) Rapticore may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “Third-Party Content”) so that it is available on and through the Services via your Account, and (2) Rapticore may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all Third-Party Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Rapticore’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Content may no longer be available on and through the Services. You will have the ability to disable the connection between your Account on the Services and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. Rapticore makes no effort to review any Third-Party Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Rapticore is not responsible for any Third-Party Content.
3. Customer obligations
Customer undertakes to actively collaborate on a regular basis with Rapticore for the Services to be properly delivered. In order to deliver the Services in a timely and accurate manner, Rapticore may need to rely on Customer to integrate Rapticore Services into Your monitored environment. Customer agrees to communicate to Rapticore all existing documents and information in its possession reasonably requested by Rapticore for the proper delivery of Services.
4. Intellectual Property
4.1 Rapticore pre-existing works
Rapticore retains the property rights over its pre-existing works (including the Intellectual Property Rights), as well as of all or part of its materials, information, tools, methods, systems, equipment, hardware and software, documentation, data, databases, files of all types, made available to the Client within the framework of these ToS, whether or not used by Rapticore. Consequently, Customer will only have a right of access and use, strictly limited to the performance of these ToS as described in Section 4.3, for the elements made available by Rapticore for the performance of the Services.
For the avoidance of doubt, except as expressly provided in these ToS, Your access and use to the Services does not convey any rights (including Intellectual Property Rights) or ownership, either express or implied, in all or part of (a) the Services; (b) the Platform and the Software; (c) the Site; (d) the Dashboard; or (e) any related Documentation.
4.2 Customer Data
You exclusively own all rights, title and interest in and to all Customer Data which may include Customer Personal Data. You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and obtaining permissions for all Customer Data. You will make sure that no sensitive data, such as personal health or financial information, is submitted to Rapticore. You hereby grant to Rapticore a, non-exclusive, limited, nontransferable right, during the Term (including during any Trial Period), to store, host, reproduce, and maintain Your Customer Data solely for purposes of making the Services available to You and increasing the performance or to the enhancement of the Services. Customer Data shall be considered to be Confidential Information under the ToS. Customer acknowledges and agrees that Rapticore's subcontractors may have access to Customer Data in connection with the performance of these ToS.
4.3 User Generated Content
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Services. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Rapticore:
- Is not involved in the creation or development of User Generated Content.
- Disclaims any responsibility for User Generated Content.
- Cannot be liable for claims arising out of or relating to User Generated Content.
- Is not obligated to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generate Content on the Services at its sole discretion.
You hereby represent and warrant to Rapticore that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Rapticore or purport you to act as a representative or agent of Rapticore; and (viii) will not create liability for Rapticore or cause Rapticore to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Generated Content through the Services, you hereby grant to Rapticore a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Generated Content on, through or by means of the Services. We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content.
To the maximum extent permitted by law, Customer agrees that it will not modify, rent, lease, distribute, resell, prepare derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Software, the Platform, any object code generated by the Services or any part thereof, or otherwise attempt to discover any source code, modify the Software in any manner or form, or use unauthorized or modified versions of the Software, including (without limitation) for the purposes of building a similar or competitive product or Services (or contract with a third party to do so) or obtaining unauthorized access to the Services. In addition, You may not access or use the Services for any benchmarking or competitive purposes. You may not use the Services with any software, program, computer code, object code other than the Software provided or agreed in writing by Rapticore. You may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software.
4.5. Rapticore intellectual property indemnification
Rapticore will defend You against any claims made by a third party that the Rapticore Platform, Software, or Services delivered under these ToS infringes a third-party Intellectual Property Rights, and will pay all costs, damages and expenses (including reasonable legal fees) finally awarded against You by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Rapticore arising out of such claim, provided (i) You provide Rapticore with prompt written notice of the claim, and (ii) You give Rapticore sole control of the defense of the claim and any related settlement discussions and provides reasonable cooperation in the defense and settlement of the claim.
If such a claim is made, or in Rapticore's reasonable opinion any element of the Services is likely to become the subject of such a claim, Rapticore may at its expense, either secure the right for You to continue using the Services concerned, modify it so that it is not infringing, or replace it with another program which is functionally equivalent. If none of the foregoing options are available on terms which are reasonable in Rapticore's judgment, Rapticore may terminate the Services and refund all prepaid but unused Fees paid hereunder for the affected Services.
Rapticore shall have no obligation to defend or indemnify You against any claim related to (i) any modification of a Service by anybody other than Rapticore, or (ii) the use of one or more of the Services in combination with other hardware, data or programs not specified by Rapticore. This section states the entire liability of Rapticore and Your exclusive remedy for any claim of infringement of Intellectual Property Rights.
5. Term and Termination
These ToS will commence on the Effective Date and will remain in force against You even after your right to use the Services is terminated or limited.
5.1.1. The Trial Period
Every paid Plan starts with a fourteen (14) days free trial period of the Services (the "Trial Period") commencing on the Effective Date.
During the Trial Period, the Rapticore Platform will monitor up to 5 Cloud Accounts belonging to You. At the end of the Trial Period, You can choose to subscribe to the paid-Plan that best fits your needs. Once you have subscribed to a paid-Plan, Your access to the Services and to Your Account will continue under that paid Plan subject to the provisions herein.
Unless continued under a paid Plan, Your access to the Services will terminate at the end of the Trial Period.
You may terminate your access to the Services at any time during a Trial Period and under any non-paid plan by providing notice to the other Party. Otherwise, Your access to the Services will renew automatically every month if You have subscribed to a monthly Plan or every year if You have subscribed to a yearly Plan (each, a "Renewal Term"), unless You give Rapticore notice of Your intention not to renew at least thirty (30) days before the Renewal Term. The renewal charge will be equal to the fee in effect at the time of the renewal.
Rapticore reserves the right to suspend or cease providing the Services or any portion of the Services, at any time, if Rapticore encounters any problems collecting payment for the Services, if You are not complying with these ToS, or if you use the Services in any way that could cause us legal liability or disrupt others' use of the Services. In this case, Rapticore will try to let you know in advance.
You or Rapticore may terminate these ToS for cause (a) upon 30 days' written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) if, to the extent permitted by applicable laws, the other party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (ii) goes out of business or (iii) ceases its operations. In such case, the ToS and any related Services will be terminated as of right, notwithstanding any other remedy that the affected Party may seek for damages.
Upon the termination of these ToS for any reason, Customer will cease all use of the Software, the Dashboard and the Services and Rapticore will disable the Software, the Dashboard and the Services for which Customer's usage rights have been terminated or which have expired. Termination will have no effect on Customer's obligation to pay for any Services rendered prior to the effective date of termination.
The provisions of these ToS which by their intent or meaning are intended to survive termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive any termination of these ToS and any termination of Your use of or subscription to the Services and shall continue to apply indefinitely.
Following the termination or cancellation of Your Account, we reserve the right to delete all of Your data, including any Customer Data, in the normal course of operation. Your data cannot be recovered once Your Account is terminated or cancelled.
6. Price and Payment
6.1. Fees and Payment.
The fees ("Fee(s)") applicable to each of the paid Plans are available either at rapticore.com/pricing or as communicated to You by Us via email, e.g.: if you subscribe to an Enterprise Plan. Customer hereby agrees that it will pay the then-current Fees applicable at the Effective Date to the paid Plan(s) selected by the Customer for the provision of the Services.
If, during the Term, You purchase Services for additional accounts, the fee for the added accounts will be Rapticore's then-current subscription Fee.
You authorize Rapticore to charge You for all applicable Fees using Rapticore’s preferred third-party billing partners, including but not limited to Stripe and its affiliates. All Fees are payable immediately upon invoicing.
Prices are exclusive of sales and use, or other similar tax and fees, which shall be separately stated on invoices. You are responsible for all tax obligations arising from Your actions, including for purchased Services.
6.3. Non-Payment and Suspension
In addition to Rapticore's right to terminate the ToS, if You fail to pay any applicable Fee, for any payment that is not paid within 30 days after the date of the applicable invoice, Rapticore may require Customer to pay interest at the rate of 1.5% per month or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until such amounts are paid in full.
7. Representations and Warranties.
7.1 Customer Representations. You represent and warrant that:
- You are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, are able to form a legally binding contract and, if You are entering into these ToS on a company's behalf, have all necessary legal authority to bind Customer to these ToS.
- You have and will maintain all rights necessary to grant to Rapticore the rights granted in these ToS, and by providing Your Customer Data to Rapticore in accordance with the ToS, You will not violate any Intellectual Property Rights of third parties, confidential relationships, contractual obligations or laws.
7.2 Prohibited Activities
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the Services in any medium other than as allowed by the Services and these ToS; (ii) using any automated system (other than any functionalities of the Services), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the Services; (viii) infringing upon or violate our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Services or staff member of Rapticore; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the Services; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the Services for any purpose or in any manner that infringes the rights of any third party; or (xvii) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Rapticore as set forth below, you do not have any motivation, status, or interest which Rapticore may reasonably wish to know about in connection with the Services, including without limitation, if you are using or will or intend to use the Services for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Rapticore in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Services.
8. Disclaimer of Warranties. Indemnification. Limitation of Liability.
8.1. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Moreover, Rapticore disclaims all liability and does not represent or warrant that (i) Services will meet Your requirements or will enable it to attain the objectives You have set for yourself, (ii) Services will operate in the combination or environment selected for use by You (iii) the operation of Services will be uninterrupted, accurate, complete or error-free or (iv) the use of the Services prevents You from all and any security breach or hack. While using the Services, You understand and agree that You should continue to use a reasonable degree of care when managing Your Properties to protect them against security threats, including (without limitation) by avoiding to download any obviously malicious applications. You agree that the Services may be subject to limitations, delays, errors and other problems inherent to the use of the internet and electronic communications. Rapticore is not responsible for any delays, delivery failures, or other damage resulting from such problems. In all instances, You shall be solely responsible for ensuring that the results produced by the Services comply with the quality and safety requirements of Your products or services.
You agree to indemnify and hold Rapticore, its Affiliates, officers, agents, employees, resellers or other partners and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys' fees, arising out of or related to Your Customer Data, or the use thereof, including but not limited to allegations that any processing of Your Data by Rapticore and/or You under these ToS violates any applicable law or regulation, or infringes the privacy or Intellectual Property Rights of a third party, Your use of the Services in violation of these ToS and applicable laws or regulations, Your violation of these terms, or Your violation of any law, provided (i) Rapticore provides You with prompt written notice of the claim, and (ii) Rapticore provides reasonable cooperation in the defense and settlement of the claim. We reserve the right, in our sole discretion, to assume the exclusive defense and control of any matter otherwise subject to Your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Rapticore.
8.3 Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RAPTICORE OR ITS AFFILIATES OR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR CONTENT, LOSS OF PROFITS, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY RAPTICORE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR OTHER SPECIAL, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT RAPTICORE OR ITS AFFILIATES OR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY HEREUNDER (WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT OF FEES EFFECTIVELY PAID BY YOU TO RAPTICORE UNDER THE PAID PLAN CONCERNED FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RAPTICORE AND ITS AFFILIATES AND CORPORATE PARTNERS SHALL HAVE NO LIABILITY IN RESPECT OF ANY AND ALL CLAIMS FOR ANY DAMAGES, FOR ANY REASON AND ON ANY BASIS, ARISING FROM OR IN RELATION TO THE SERVICES PROVIDED TO THE CUSTOMER IN THE COURSE OF A NON-PAID PLAN DURING A TRIAL PERIOD.
9. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND RAPTICORE CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND RAPTICORE TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, you will contact us at firstname.lastname@example.org and You and Rapticore will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should You file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the mater by mediation, then you agree that you will not be entitled to recover attorneys’ fees, even if you may have been entitled to them otherwise.
Binding Arbitration.You and Rapticore agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Services (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.This means that you and Rapticore both agree to waive the right to a trial by jury.Notwithstanding the foregoing, you may bring a claim against Rapticore in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver.You and Rapticore agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action.This means that you and Rapticore both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Rapticore agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules.The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process.A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure.Unless you and Rapticore agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Rapticore submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law.The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees.Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
Parties agree that when receiving or accessing Confidential Information from the disclosing Party, that the receiving Party shall hold it in confidence and shall not disclose or use such information except as expressly permitted under the ToS. The receiving Party shall maintain the disclosing Party's Confidential Information in confidence in compliance with the terms of these ToS and in the same manner as it treats its own proprietary and/or confidential information, which shall not be less than a reasonable standard of care, and the receiving Party shall use Confidential Information only for the purposes described in the ToS. Confidential Information may be disclosed to receiving Party's employees, financial advisors, contractors and attorneys (the "Authorized Third Parties") only if they have a need-to know about it for the purposes described in these ToS. Before doing so, the receiving Party shall ensure that the Authorized Third Parties are required to protect the Confidential Information on terms consistent with these ToS and accept responsibility for each Authorized Third Party's use of Confidential Information.
The receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law, regulation or court order, provided that the receiving Party shall, where reasonably possible, give the disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the disclosing Party to obtain a protective order. For the purposes of these ToS, Confidential Information shall exclude: (i) information which the receiving Party has been authorized in writing by the disclosing Party to disclose without restriction; (ii) information which the receiving Party can prove was rightfully in its possession or rightfully known to it prior to receipt of such information from the disclosing Party; (iii) information which was rightfully disclosed to the receiving Party by a third party without any breach of confidentiality obligations by the third party or the receiving Party; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the receiving Party; and (v) information which the receiving Party can prove was independently developed without use or reference to the disclosing Party's Confidential Information. Nothing in the ToS will (i) preclude Rapticore from using the ideas, concepts and know-how which are developed in the course of providing the Services to You or (ii) be deemed to limit Rapticore's rights to provide similar Services to other customers. You agree that Rapticore may use any feedback You provide in relation to any Services for any business purpose, without requiring Your consent. The receiving Party agrees, upon request of the disclosing Party, to return to the disclosing Party all Confidential Information in its possession or certify the destruction thereof. The confidentiality obligation contained herein shall survive the termination of the ToS for five (5) years.
11. Personal data
You at all times the data controller of Your Personal Data and the Personal Data of Your Users. Rapticore is processing Your Personal Data and the Personal Data of Your Properties' Users only on behalf of You and in compliance with Your instructions for the sole purpose of the performance of the Services. Rapticore warrants that it has implemented adequate technical and organizational security measures designed to protect the security, integrity and confidentiality of the Customer Data and the Personal Data of Your Users in accordance with applicable law.
12.1. Independent Contractors
The Parties expressly agree that the relationship between them is that of customer-independent contractor. Nothing contained in these ToS will be construed or implied to create an agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship between the Parties.
12.2. Force Majeure
In case of a Force Majeure Event temporarily preventing a Party from performing its obligations, both Parties' performance of their obligations will be suspended without any liability incurred on either part.
Should the Force Majeure Event last longer than thirty (30) consecutive days, and/or should the Force Majeure Event prevent a Party from performing its obligations permanently, either Party shall be entitled to terminate the ToS by sending notice (in accordance with Section 12.3) to the other.
For the purpose of this Section, the term "Force Majeure Event" means any event that was beyond the Party's reasonable control, including, for example, an act of God, natural disaster, act of war or terrorism, riot or civil arrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services.
Rapticore may give notice to You by posting a message on Your Platform or sending an electronic mail to Your e-mail address on record in Your Account. You consent to receive any agreements, notices, disclosure and other communications to which this Agreement refers electronically and pursuant to the preceding sentence.
You may give notice to Rapticore by email sent to email@example.com or by mail sent to Rapticore’s address: 2227 Derby Street, Berkeley, CA 94705. You may also contact us with any questions about these Terms of Service or about the Services.
Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
Customer consents to Rapticore’s use of Customer’s name and logo and general description of Customer’s relationship with Rapticore in press releases and other marketing materials and appearances. Customer further permits Rapticore to use it as a reference account for marketing purposes and agrees, from time to time, to support Rapticore by participating in reference phone call(s) and other marketing events including with press, analysts, and Rapticore’s existing or potential investors or customers upon reasonable request by Rapticore.
12.5. Governing Law / Jurisdiction
Except as provided in Section 9, this Agreement and your use of the Services will be governed by and construed in accordance with the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement. The application of United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
12.6. Entire Agreement; No Waiver
These ToS and any Data Processing Agreement that you have entered into with Rapticore (or one of its Affiliates) contain the entire agreement between the Parties with respect to the Services and supersede all other oral or written representations, statements, or agreements with respect to such subject matter. Failure by Rapticore to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right.
You may not assign or otherwise transfer this Agreement without the prior written consent of Rapticore, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void. We may assign or transfer this Agreement without your consent, including but not limited to, any Person or entity that is acquiring all or substantially all of our assets or which is a successor by merger, consolidation, acquisition of stock or assets, or other business combination. This Agreement will inure to the benefit of Rapticore, its successors and assigns.
12.8. Severability and Reformation
The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal and enforceable. Except for the “Class Action Waiver” in Section 9, if any provision of this Agreement is held to be invalid or unenforceable by arbitration or a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect. Such invalid or unenforceable provision will be severed from this Agreement with the remaining terms of this Agreement to be automatically revised to best reflect the Parties' original intent.
12.9 No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.