INDIVIDUAL OPEN ACCESS ACCOUNT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE LIMITATIONS ON LIABILITY AND A DISCLAIMER OF ALL WARRANTIES.
This Individual Open Access Account Agreement (referred to herein as this “Agreement”) is between Riffyn Inc. (“Riffyn”) and you (“Customer” or “you”) and governs the use of our Services and Software (defined below). By clicking “I Agree” or by implementing or using the Services and Software, you agree that you are authorized to accept this Agreement on behalf of yourself and that you are bound by this Agreement. If you are agreeing to this Agreement for use of the Services and Software by yourself as an employee, consultant, contractor, volunteer or member an organization, then you are agreeing to this Agreement on behalf of that organization (and “Customer” and “you” will refer to that organization). You must have the authority to bind that organization to this Agreement; otherwise you must not sign up for the Services. By using the Services, you are representing and warranting that you are over the age of 18, or the legal age of majority in your jurisdiction of residence.
You must affirmatively agree to and indicate your acceptance of this Agreement in order to use the Services. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICE, AND YOU MUST IMMEDIATELY STOP USING OUR SERVICES.
Please note that if you have executed a separate written agreement with Riffyn regarding your use of our Services, then that agreement, and not this Agreement, applies to those Services.
After acceptance of this Agreement, you will receive from Riffyn instructions for accessing your Individual Open Access Account. This account will be suspended at the end of the Term of this Agreement
(a) “Affiliate” means any entity that directly or indirectly controls, 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 the subject entity.
(b) “Customer Data” means electronic data, content and information provided to the Subscription Services by Customer, or by a third-party or Riffyn on behalf of Customer, or that Customer or a third-party acting on behalf of Customer uses the Subscription Services to collect or process, including copies, modifications and derivative works thereof.
(c) “Order Form” means an ordering document expressly referencing this Agreement, including any addenda and supplements thereto, signed by the parties hereto (or an Affiliate) specifying the Services to be provided hereunder.
(d) “Output” means the reports and other output of the Subscription Services resulting from processing of Customer Data by the Subscription Services, excluding any Riffyn technology or information incorporated therein (e.g., the underlying template of the report).
(e) “Results” means the results of any Support Services provided by Riffyn to Customer, excluding any Customer Data or other Customer Confidential Information incorporated therein.
(f) “Services” means the Subscription Services and Support Services.
(g) “Shared Entity” means any data, content or information stored on the Subscription Services that is accessible by a User other than the User that provided the data, content or information to the Subscription Services.
(h) “Software” means any downloadable software components that Riffyn may provide to Customer pursuant to this Agreement.
(i) “Subscription Services” means Riffyn’s online, web-based process design and development, data storage and analytics platform and services and accompanying documentation, which are made available to Customer by Riffyn pursuant to this Agreement, including all updates and improvements thereto.
(j) “Support Services” means Riffyn’s technical support services, training services, software development services, and implementation or consulting services which may be provided to Customer by Riffyn.
(k) “User” means the individual who accepts this agreement.
2. Use of the Services
(a) Services. Subject to the terms and conditions of the Agreement, Riffyn shall make the Services and Software available to Customer. Customer is permitted to view, use and download the data, content and information on Shared Entities, but may not create any data, content, or information other than that expressly permitted by the application. Riffyn, at its complete discretion at any time, may restrict or change Customer access to any component, feature or capacity of the Services and Software. Riffyn, at its complete discretion at any time, reserves the right to adjust the terms and conditions of the Agreement. Riffyn may choose to provide Support Services to Customer, but is not obligated to do so.
(b) Authorized Use. Subject to the terms and conditions set forth herein, Customer and its Users shall have the limited, non-sublicensable, non-exclusive, non-transferable right, solely during the Term, (i) to access and use the Services and the Results, solely in support of the business operations of Customer and its Affiliates, and (ii) to install and use, and make a reasonable number of copies of, the Software (if provided by Riffyn) solely in support of Customer’s authorized use of the Subscription Services. Customer shall be responsible for its Users’ compliance with the terms and conditions of this Agreement applicable to Customer, and the acts, omissions or breaches hereunder by any of Customer’s Users or any other individuals using accounts or credentials for the Services obtained from Customer or any User. Customer is responsible for maintaining the security of its account, passwords (including, but not limited to, administrative and user passwords). Each User account is restricted to the specific person registered to use such account, and such account may not be accessed or used by or shared with other persons.
(c) Feedback to Customer. With respect to those Results that are feedback, comments and suggestions for improvements to Customer’s business processes or products, Customer shall have the non-exclusive, perpetual, irrevocable, transferable, sub-licensable, royalty-free, paid-up, worldwide license to use and exploit such Results for any purpose, including but not limited to the design and development of such business processes and products.
(d) Usage Restrictions. Customer will not directly or indirectly (i) make the Services or Software available to, or use the Services or Software for the benefit of, anyone other than Customer or the Users; (ii) sell, resell, license, sublicense, distribute, rent or lease the Services or Software, or include any Services or Software in a service bureau or outsourcing offering; (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful, or tortious content, material or data; (iv) store or transmit material or data on or through the Services in violation of third-party rights, including without limitation privacy rights or any contract to which Customer is a party; (v) use the Services or Software to store or transmit malicious or disruptive code; (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) permit direct or indirect access to or use of the Services or Software in a way that circumvents a contractual usage limit; (ix) copy the Services or Software or any part, feature, function or user interface thereof; (x) frame or mirror any part of any Services, other than framing on Customer’s own internal intranets; (xi) access or use the Services or Software for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (xii) modify, translate, or create derivative works based on the Software or Services or any underlying software; (xiii) decompile, disassemble, decipher or reverse engineer the Services or Software, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services or Software, (except to the extent such restriction is expressly prohibited by applicable statutory law); or (xiv) post malicious or offensive data, content or information.
(e) Removal of Data. Riffyn, at any time for any reason and its complete discretion, may remove any data, content or information or Customer Data that it deems to be in violation of the Usage Restrictions set forth in section 2(d).
(f) USE AT OWN RISK. CUSTOMER MAY ENCOUNTER MALICIOUS OR OFFENSIVE SHARED ENTITIES. CUSTOMER ACCEPTS ANY AND ALL RISKS ASSOCIATED WITH VIEWING, USING, OR DOWNLOADING SHARED ENTITIES. CUSTOMER MAY NOTIFY RIFFYN OF SHARED ENTITIES THEY BELIEVE TO BE OFFENSIVE OR MALICIOUS.
(g) Limitations. Riffyn will not be responsible or liable for any failure in the Services or Software.
3. Term and Termination
(a) Term. This Agreement commences on the date of acceptance (the “Effective Date”) and continues in effect for one year, unless terminated earlier in accordance with the terms of Section 3(b) (Termination). The Term will automatically extend for additional one (1) year periods unless and until Customer provides Riffyn notice of non-renewal at least thirty (30) calendar days before the end of the relevant Term, or until Riffyn terminates the Agreement.
(b) Termination. If Customer materially breaches any of its duties or obligations under this Agreement, Riffyn may terminate this Agreement. Riffyn may terminate this agreement at any time without notice.
(c) Data Portability and Deletion. After the Term, Riffyn will retain Customer Data for at least 30 days for Customer to download, but will have no obligation to maintain or provide Customer Data thereafter, and may at its option, or upon customer request, delete or destroy all copies of Customer Data in Riffyn’s systems or otherwise in Riffyn’s possession or control, unless legally prohibited. After 30 days after the Term, Riffyn will not remove or destroy Shared Entities that Customer has provided to the Subscription Services, but reserves the right to do so at its complete discretion.
(d) Surviving Provisions. The sections and subsections titled “Data Portability and Deletion,” “Disclaimers,” “Confidential Information,” “Proprietary Rights,” “Mutual Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination or expiration if this Agreement.
4. Representations and Warranties
(a) Representations and Warranties. Each party represents and warrants that: (i) it has full power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
(b) Customer Warranties. Customer represents, warrants and covenants that (i) all Customer Data provided hereunder has been collected and provided by or on behalf of Customer in accordance with all applicable laws, rules and regulations; (ii) it owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement; (iii) it shall only use Services and Software in accordance with all applicable laws, rules and regulations and this Agreement and any relevant documentation provided by Riffyn and (iv) it will not provide Riffyn with any Customer Data that is personally identifying information subject to specialized security regimes, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”). Riffyn is not a “Business Associate” under HIPAA, and Customer will not provide any protected health information to Riffyn.
(c) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. RIFFYN AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR SOFTWARE OR THE OUTPUT OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES OR SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RIFFYN AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES OR SOFTWARE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE SERVICES OR SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS.
5. Confidential Information
(a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving 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. Customer’s Confidential Information includes Output and Customer Data; Riffyn’s Confidential Information includes the Services, including Results, and Software, and Confidential Information of each party includes the terms and conditions of this Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information of a Disclosing Party does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was rightfully 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 rightfully received from a third party without breach of any obligation owed to the Disclosing Party or (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the Confidential Information of the Disclosing Party as it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, only disclose Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who (A) need that access for purposes consistent with this Agreement and (B) have confidentiality obligations with respect to the Disclosing Party’s Confidential Information consistent with those contained herein. A Receiving Party shall be responsible for any breaches of confidentiality obligations hereunder by any third party to whom it discloses the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary set forth herein, Riffyn may collect and use data regarding the performance and use of the Service in anonymized and aggregated form, and that does not contain Customer Confidential Information or identify any person or entity, to provide, analyze and improve the Service.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, 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.
6. Proprietary Rights
(a) Customer. As between the parties, except for the licenses set forth herein, all right, title and interest in and to the Customer Data and the Output shall be and remain the sole and exclusive property of Customer.
(b) License to Customer Data. Customer hereby grants Riffyn a non-exclusive, worldwide, license to use, process, reproduce, perform, display, modify, distribute and transmit the Customer Data solely to provide the Services to Customer as set forth in this Agreement. Customer agrees that (i) the quality of the Services depend on the uploading or other provisioning of the Customer Data into the Subscription Services, as applicable, and (ii) Riffyn will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data
(c) Riffyn. As between the parties, all right, title and interest in and to the Services and Software, and all copies, modifications and derivative works thereof shall be and remain the sole and exclusive property of Riffyn.
(d) Feedback. Customer and its Users may provide Riffyn with feedback, comments and suggestions for improvements to the Services and Software (“Feedback”), and Riffyn is hereby granted a non-exclusive, perpetual, irrevocable, transferable, sub-licensable, royalty-free, paid-up, worldwide license to use and exploit such Feedback for any purpose, including but not limited to the design and development of the Services and Software.
(e) No License. Except as expressly set forth herein, no license or other right, title or interest is granted by either party to the other with respect to the Confidential Information, Services, Software, Output, Results, or Customer Data.
(f) Public Entities. The Services and Software provide a mechanism for Customer to share Customer Data publicly. Such publicly shared data are “Public Entities.” When Customer designates data as a Public Entity, they grant to the public the rights to (i) copy and redistribute the material in any medium or format, (ii) remix, transform, and build upon the material for any purpose, even commercially. Once data designated as a Public Entity, Customer cannot revoke these rights.
7. Information Security
Riffyn shall be responsible for establishing and maintaining a commercially reasonable information security program that is designed to: (a) protect the security and confidentiality of the Customer Data; (b) protect against anticipated threats or hazards to the security or integrity of the Customer Data; (c) protect against unauthorized access to or use of the Customer Data and (d) require that all subcontractors of Riffyn who will be accessing the Customer Data, if any, comply with the foregoing. Customer shall use commercially reasonable security and anti-virus measures when uploading Client Data to, accessing and using the Services and to prevent unauthorized access to, or use of, the Services, and shall notify Riffyn promptly of any such unauthorized access or use of which it becomes reasonably aware.
8. Mutual Indemnification
(a) Infringement. If Riffyn receives information about an infringement or misappropriation claim arising directly out of the Services or Software, Riffyn may in its discretion and at no cost to Customer (i) modify the Services or Software so that they no longer infringe or misappropriate; or (ii) obtain a license for Customer’s continued use of the Services and Software in accordance with this Agreement, and, if (i) and (ii) are not practicable despite Riffyn’s reasonable efforts, then Riffyn may terminate Customer’s subscription for the Services and license to the Software. Section 8(a) states Riffyn’s sole liability, and the Customer’s exclusive remedy, for any infringement or misappropriation of third-party intellectual property rights with respect to the Services and Software.
(b) Indemnification by Customer. Customer will defend Riffyn against any Claim made or brought against Riffyn by a third party (i) alleging that Customer Data, or Customer’s use of the Services or Software in breach of this Agreement, violates, infringes or misappropriates such third party’s intellectual property or other proprietary or privacy rights or violates applicable law, order, rule or regulation, and Customer will indemnify and hold harmless Riffyn from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid under a settlement of, such Claim made in accordance with the terms of Section 8(c)(Indemnification Procedure).
(c) Indemnification Procedure. Any claim for indemnification hereunder requires that the indemnified party (i) promptly give the indemnifying party written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim, provided that the indemnified party may participate in the defense of the Claim with counsel of its choosing at its own expense and further provided that the indemnifying party shall not be responsible for any settlement that it does not approve in writing, such approval not to be unreasonably withheld and (iii) give the indemnifying party all reasonable assistance, at indemnifying party’s expense.
9. Limitation of Liability
EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, In no event shall EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) interruption OF USE, LOSS OR INACCURACY of THE SERVICES OR SOFTWARE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) damages, IN THE AGGREGATE, in excess of the amountS PAID TO RIFFYN HEREUNDER DURING THE TWELVE (12) MONTHS immediately preceding the event giving rise to the liability, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10. General PROVISIONS
(a) Relationship between Customer and Riffyn. The relationship between the parties is that of independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind or attempt to bind the other party in any respect whatsoever.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Transactions Act are specifically excluded from application to this Agreement.
(c) Force Majeure. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. This provision shall not excuse the payment of fees due under this Agreement, provided that Riffyn continues to provide the Services as set forth herein.
(d) No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
(e) Notices. Any notice given pursuant to this Agreement shall be in writing and delivered to the parties at their respective addresses or at such other address designated by written notice hereunder. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if sent by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
(f) Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Riffyn’s prior written consent (not to be unreasonably withheld). Riffyn may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Further, Riffyn shall have the right to use subcontractors in its performance of this Agreement, and Riffyn shall remain responsible for any breach of this Agreement by such subcontractors to the same extent Riffyn is liable for its own breach hereunder.
(g) Counterparts; Execution. This Agreement may be executed electronically and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that an electronic or facsimile signature may substitute for and have the same legal effect as the original signature.
(h) Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersede any and all previous or contemporary representations, understandings, or agreements between the parties as to the subject matter hereof. If you have executed a separate written agreement with Riffyn regarding your use of our Services, then that agreement, and not this Agreement, applies to those Services. This Agreement may only be amended by an instrument in writing signed by both parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than with regard to capacity licensed, Term, Services, bill to, ship to, pricing) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.
(i) 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.
[version 31 January 2018]