Terms and Conditions
Software as a Service (SaaS) Agreement
This SaaS Agreement (the “Agreement”) is entered into as of the date the customer signs an Order Form or accepts this Agreement at account sign-up (the “Effective Date”), between the customer identified in its Order Form or account sign-up (“Subscriber”), with offices located at the address identified in its Order Form or account sign-up and RubyPoints Corp (“Provider”) with offices located at 23807 Aliso Creek Rd, Suite 100, Laguna Niguel, California 92677. For purposes of this Agreement, Subscriber and Provider each may be referred to individually as a “Party” and together as the “Parties.”
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions
As used herein:
“Authorized Users” shall mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Service and identified on an applicable Order Form.
“Display Devices” shall mean the display device of an Authorized User used to access, display, and use the Service.
“Service” shall mean Provider’s plugin, pixel and other Web, email, and database services identified on an Order Form, including associated documentation made available to Subscriber in written form or online, subscribed to by Subscriber hereunder.
“Service Start Date” shall mean the date from which Subscriber first receives the applicable Service or as identified on an applicable Order Form, whichever is earlier.
“Fees” shall mean the fees payable pursuant to Section 3 hereof and an applicable Order Form and/or Order.
“Office” shall mean the address(es) of Subscriber’s office(s) in which an Authorized User’s Display Device is located, as identified on an applicable Order Form.
“Order Form” shall mean a written document executed by the Parties in the form attached hereto as Exhibit A that describes the Service, Term, Fees, the number of Authorized Users and/or Display Devices, the permitted Office(s), and any other applicable terms and conditions applicable to Subscriber’s access and use of the Service. Each executed Order Form is hereby incorporated into this Agreement in its entirety by this reference. An Order Form will take precedence over any other provision of this Agreement, provided that any conflict or inconsistency in an Order Form with any other provision of this Agreement will only apply to that specific Order Form.
“Provider Data” means any electronic data, customer data, information, or material that Provider obtains from the Provider “Ruby Points” plugin or mobile application, or any related browser extension, whether or not related to Subscriber or Subscriber’s customers.
“Subscriber Data” means (i) any electronic data, customer data, information, or material that Subscriber provides, uploads, or submits to Provider in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Service (including any Authorized User), such as data collected from the use of pixels on Subscriber’s ecommerce websites.
“Subscriber Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Subscriber, as such trademarks and other marks may be modified by Subscriber from time to time.
“Term” shall mean the period beginning on the Effective Date and ending on the date the last Order Form or Order in effect terminates or expires, as applicable.
2. Provider to Receive the Service
Grant. Provider hereby grants the Subscriber identified on the Order Form attached hereto a limited, non-exclusive and non-transferable right to use, without right of assignment, during the Term to access, display, and use on Subscriber’s Display Devices within the United States, the Service, and to permit Authorized Users to access and use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved to Provider.
Scope. The right to use granted to Subscriber hereunder is solely for Subscriber’s internal business purposes and is limited to the access, display, and use of the Service by only an Authorized User. Each Authorized User may access, display, and use the Service on only one Display Device at a time. Subscriber shall have no right pursuant to this Agreement to access, use, display, or distribute the Service, in whole or in part, beyond the number of Authorized Users identified on the applicable Order Form. Subscriber may add additional Authorized Users by either executing a new Order Form or amending an existing Order Form. Subscriber is responsible for all activities that occur under Subscriber’s and any Authorized User’s accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Service by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Provider promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service. Nothing in this Agreement shall obligate Provider to continue providing access to any Service beyond the date when Provider ceases providing such Service to subscribers generally. Upon Provider request, Subscriber will provide a list of all Authorized Users of Subscriber.
Restrictions on Use. Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to (including any Authorized User):
- Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
- Modify, translate, adapt, alter, or create derivative works from the Service;
- Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Service;
- Distribute, assign, transfer, sublicense, rent, lease, loan or grant any third-party (other than employees and contractors of Subscriber) access to or use of the Service to any third party;
- Harvest, collect, gather, or assemble information or data regarding other subscribers;
- Transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
- Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
- Interfere with or disrupt the integrity or performance of the Service or the data contained therein;
- Attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or
- Harass or interfere with another subscriber or end-user’s use and enjoyment of the Service.
Service Options. Subscriber will have any or all, or any combination of the following options for the Service, to be selected and indicated on the Order Form:
- Obtain a copy of the Provider specialized and proprietary database of online shopping data and utilize the same in Subscriber’s ecommerce website;
- Offer a Chrome extension connect to the Service to their ecommerce website visitors and/or offer visitors and customers the right to use a similar plug-in at checkout; or
- Allow Provider to provide a pixel to be incorporated into their ecommerce website pages that will also provide the Service.
3. Fees and Payment
Service Fees and Other Fees. In exchange for the Services to be provided and the rights granted under this Agreement, commencing on the Service Start Date, Subscriber shall pay Provider the Fees identified in the applicable Order Form, plus any other applicable fees, costs, and expenses contained in the Order Form and this Agreement. Unless otherwise set forth in the applicable Order Form, all Fees are payable in advance on an annual or monthly basis and are based on the Services and the unit based pricing for each of Email, SMS, MMS, Modals, Pixel Data and Plugin Data as identified in the Order Form.
Late Payments. If Subscriber fails to pay the Fees by the due date specified on the invoice, Provider shall be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is less.
Taxes. Subscriber will be responsible for, and will promptly pay or reimburse Provider for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Provider that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services or goods provided by Provider to Subscriber, or the amounts payable to Provider therefore.
Professional Services. During the Term, Subscriber may request Provider to perform professional services in the nature of software development, customization add-in, documentation, training, testing, integration services, and any other similar services that Provider may offer (hereinafter, “Professional Services”). Upon receipt of a request, Provider may provide Subscriber with a written proposal, and when the Parties agree to all requirements and specifications of the proposed Professional Services, an Order for the Professional Services, in addition to the Order Form as in Exhibit A, shall be executed by the Parties. All Orders shall be subject to the terms and conditions of this Agreement, unless otherwise set forth in the Order. Services performed by Provider are not exclusive to Subscriber, and Provider may perform services of any type or nature for any other person or entity at any time.
4. Access
Service. Subscriber shall acquire, install, operate, and maintain at Subscriber’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Service. Except as expressly stated herein or on an applicable Order Form, Subscriber is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Company) to access and/or use the Service; (ii) allow access to or use of the Service outside of the United States of America (including any Authorized User).
Delivery and Acceptance. Provider will make the Service available to Subscriber as indicated on the Order Form. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades (“Corrections”) to the Service will be deemed accepted by Subscriber on the day such Corrections are first made available to Subscriber or accessed by Subscriber, whichever is earlier.
Reports and Records. Subscriber shall maintain accurate records containing the following information, copies of which Provider shall be entitled to receive upon seven (7) days prior written notice to Subscriber: (i) the address of each Office where at least one Display Device is located; (ii) the total number of Display Devices and Authorized Users at each Office; and (iii) the Service(s) received by each Authorized User on each Display Device. No Display Device may be accessed on a regular basis by more than one Authorized User, unless additional fees for such access have been agreed to in writing by the parties hereto in the applicable Order Form. Provider may, upon prior written notice to Subscriber, reasonably request Subscriber to maintain records containing additional information related to the Service and Subscriber’s use thereof. In addition, Provider may implement and use, but is not required to, various software and tools to monitor Subscriber’s use of the Service, as Provider deems reasonably necessary, in order to determine Subscriber’s compliance with the terms of this Agreement.
Audits and Inspections. For the purpose of verifying compliance with this Agreement, Provider (and Provider’s authorized representatives) shall have the right, during regular business hours upon reasonable (no less than five (5) business days) advance notice and without material disruption to Subscriber’s business, to audit and inspect from time to time Subscriber’s offices, books, and records relevant to the Service and to observe the use made of the Service and the manner in which each Display Device and Authorized User accesses the Service. Such audit rights may only be exercised twice in every twelve-month period. If such audit or inspection pursuant to this Section indicates that Subscriber is not in compliance with this Agreement (including any Order Form), such as more Authorized Users accessing the Service than permitted and/or purchased by Subscriber under an applicable Order Form, Subscriber shall pay Provider the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated in the applicable Order Form). If such underpayment exceeds three percent (3%) of the Fees due during the relevant period, Subscriber shall reimburse Provider for Provider’s reasonable costs associated with such audit or inspection.
Mergers and Acquisitions. For the purpose of calculating the Fees, it is not the parties’ intention that the Fees charged under this Agreement will include Display Devices, Authorized Users, and/or Services added through a merger or acquisition. Accordingly, in the event of any merger or acquisition that would result in Subscriber’s ownership or control of Display Devices formerly owned or controlled by another entity, or additional Authorized Users and/or Services being acquired, such additional Display Devices, Authorized Users, and/or Services will not be covered by the Fees charged under this Agreement. Subscriber agrees that such Display Devices, Authorized Users, and Services shall be subject to additional fees, based upon the then-current listed price for the additional Display Devices, Authorized Users, and/or Services resulting from the acquisition or merger. For the avoidance of doubt a merger and/or acquisition shall not entitle Subscriber to terminate this Agreement other than in accordance with the terms herein.
5. Copyright Protection; Use Restrictions; Subscriber Rights Grant
Subscriber agrees that the Service and all parts thereof, as well as its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Provider or Provider’s licensors. The works and databases included in the content of the Service are protected by applicable copyright laws. Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing intellectual property rights to the Service are granted to Subscriber, and all such rights are hereby expressly reserved.
Subscriber agrees that only Authorized Users shall be permitted access to the Service as set forth in an Order Form executed by the Parties. Except as set forth herein or in an Order Form, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.
Subscriber hereby grants to Provider the data rights, and receives the data rights, set forth on Exhibit B.
Subscriber hereby grants Provider a non-exclusive, non-transferable, and royalty-free license to use Subscriber Marks for the limited purposes set forth in this Agreement, including as necessary for Provider’s performance under this Agreement, to deliver the Service in accordance with this Agreement, and in marketing materials related to the Service.
Provider will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Provider will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf.
6. Warranties; Disclaimer
Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under this Agreement, having obtained all required Board of Directors’ or other consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT ANY GUARANTEES OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY (EXCEPT AS EXPRESSLY PROVIDED IN THE SLA) AND PROVIDER DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
7. Indemnification
Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Provider harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Provider which relate to a claim, action, lawsuit, or proceeding made or brought against Provider by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Provider Claim”) by way of Provider’s use of any Subscriber Data, Subscriber Marks, or other information or materials provided by Subscriber in connection with this Agreement.
Provider Infringement Indemnity. Provider, at its expense, will defend, indemnify, and hold Subscriber harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Subscriber to the extent such directly relates to a claim, action, lawsuit, or proceeding made or brought against Subscriber by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Subscriber Claim”) by way of Subscriber’s use of the Service that Provider provides to Subscriber under this Agreement.
For purposes herein, each Party, when providing indemnification, will be termed an “Indemnifying Party” and each Party, when receiving the benefits of indemnification, shall be termed an “Indemnified Party.” The term “Indemnified Party” will include the other Party’s respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns. The Indemnifying Party’s obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party’s sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
In the event a court of competent jurisdiction makes a determination that the Service infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Provider determines that the Service likely infringes or otherwise violates such third party’s foregoing intellectual property rights, Provider, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the Service so as to make it non-infringing and non-violating; (b) replace the allegedly infringing or violating Service, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Subscriber to continue using the allegedly infringing or violating portion of the Service; or (d) revoke the right to use to the allegedly infringing or violating Service and provide a pro rata refund to Subscriber for all fees prepaid for the Service and not yet earned by Provider.
Provider will have no obligation under this Agreement relating to any indemnification if a Subscriber Claim results from any of the following: (i) Subscriber’s continued use of the infringing or violating Service after Provider first makes an applicable Correction available to Subscriber; (ii) Subscriber’s modification of the Service (including a third party acting on its behalf); or (iii) Subscriber’s use of the Service in any manner other than as permitted under this Agreement.
8. Limitation of Liability
PROVIDER AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS (“PROVIDER PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF PROVIDER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF PROVIDER PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT, EXCEPT FOR PROVIDER’S INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 7, EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR ANY PROVIDER INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 7, IN NO EVENT WILL THE LIABILITY OF PROVIDER PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN PROVIDER PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
9. Term; Termination
This Agreement shall be effective for the Term, unless terminated earlier in accordance herewith. Modifications in any ongoing Fees in connection with the Service shall be communicated to Subscriber no later than thirty (30) days prior to their effective date, and such modified Fees shall be deemed to replace those previously stated in the Order Form. Subscriber’s continued use of the Service after any fee modifications will constitute acceptance of the new fees. Subscriber will have a right to terminate this Agreement if Subscriber objects to fee increases, provided any outstanding amounts are paid and Subscriber notifies Provider in writing of the termination. This Agreement, including all Order Forms and Orders, may be terminated as follows: (a) if either Party commits a material breach of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching Party (“Notice of Breach”), the Party giving such notice may then deliver a second written notice to the breaching Party terminating this Agreement, in which event this Agreement, and the right to uses granted hereunder, will terminate on the date specified in such second notice; or (b) if a receiver is appointed over any assets of either Party or if either Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect. If this Agreement is terminated before the end of its then-current term (as identified on the applicable Order Form or Order) for any reason other than by Subscriber under the foregoing clauses (a) or (b) in this Section, then Subscriber will pay to Provider as liquidated damages, with respect to an Order Form, the amount due by Subscriber for the previous calendar month times the number of months remaining in such Term (as identified on the applicable Order Form), or with respect to an Order, the Total Estimated Fees plus any additional amounts due by Subscriber under the applicable Order (“Liquidated Damages”) within 30 days after such termination. The parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, written or electronic, from Provider including any business division (e.g., Provider’ Credit Department), such notice will be deemed to be a Notice of Breach.
10. Confidentiality
Subscriber and Provider understand and agree that in the performance of this Agreement each Party may have access to private or Confidential Information of the other Party, which either is marked as “confidential” or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Each Party shall hold such Confidential Information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. The disclosure of the Confidential Information to the receiving Party does not confer upon the receiving Party any license, interest, or right of any kind in or to the Confidential Information, except as provided under this Agreement. At all times and notwithstanding any termination or expiration of this Agreement, the receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Confidential Information of the disclosing Party, except as approved in writing by the disclosing Party. The receiving Party will only permit access to the Confidential Information of the disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in this Agreement. The receiving Party will be responsible to the disclosing Party for any third party’s use and disclosure of the Confidential Information that the receiving Party provides to such third party in accordance with this Agreement. The receiving Party will use at least the same degree of care it would use to protect its own Confidential Information of like importance, but in no case with no less than a reasonable degree of care, including maintaining information security standards for such Confidential Information as are commercially reasonable and customary for the type of Confidential Information. This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party’s possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, before any such disclosure the receiving Party will provide notice to the disclosing Party reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure. If either Party elects to file this Agreement with the U.S. Securities and Exchange Commission or any other securities exchange or market, regulatory authority or other body, the filing Party will provide the non-filing Party with no less than five (5) business days’ notice before the expected date of the filing (the “Filing Date”), and a copy of the Agreement marked to show the sections for which the filing Party plans to seek confidential treatment. The filing Party agrees to expand its confidential treatment request to include those provisions of this Agreement reasonably indicated by the non-filing Party before the Filing Date as provisions for which the non-filing Party requests confidential treatment. All Confidential Information will remain the exclusive property of the disclosing Party. No public announcement, press release, or communication concerning this Agreement shall be made without the prior consent of the other Party. Each Party to this Agreement will immediately notify the other Party in writing upon discovery of any unauthorized loss, access, or disclosure of the Confidential Information of the other Party. Upon termination or expiration of this Agreement, upon written request of the other Party, or when no longer needed by either Party for fulfillment of its obligations under this Agreement, each Party will either: (a) promptly return to the other Party all documents and other tangible materials representing the other Party’s Confidential Information, and all copies thereof in its possession or control; or (b) destroy all tangible copies of the other Party’s Confidential Information in its possession or control by the following methods. Notwithstanding the foregoing, each Party’s legal counsel may retain one copy of the disclosing Party’s Confidential Information for its files solely to provide a record of such Confidential Information for archival purposes. If either Party should breach or threaten to breach any provision of this Section of the Agreement, the non-breaching Party, in addition to any other remedy it may have at law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of this Agreement. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party as a result of a breach of any provision of this Section. In the event that either Party should seek an injunction hereunder, the other Party hereby waives any requirement for the submission of proof of the economic value of any Confidential Information or the posting of a bond or any other security. In the event of a dispute between the Parties, the non-prevailing Party will pay all costs and expenses, including, but not limited to, reasonable attorneys’ fees, associated with resolving the dispute. For purposes of this Agreement, “Confidential Information” means any valuable, non-public business information, including this Agreement and all matters discussed relating to this Agreement, that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the disclosing Party’s business and industry.
11. Miscellaneous
Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth in this Agreement, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received or as stated in written evidence of receipt from the applicable mail courier.
Amendment. This Agreement may not be amended except in a writing executed by authorized representatives of Subscriber and Provider.
Assignment. This Agreement is not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of Provider, which will not be unreasonably withheld. Provider may freely assign, transfer, delegate or sublicense this Agreement to any affiliate or successor entity. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.
Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, will survive the termination or expiration of this Agreement and remain binding upon and for the benefit of the Parties hereto.
Independent Contractor. Provider is acting in performance of this Agreement as an independent contractor.
Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.
Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Provider will be entitled, in addition to any other rights available under this Agreement, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications, or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of California, United States of America (“California”), applicable to contracts made entirely within California and wholly performed in California, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in California. Further, neither the United Nations Convention on Contractors for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
Force Majeure. Any failure or delay by either Party in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemic or quarantines or any governmental orders with respect thereto, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States, or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, or any similar cause beyond the reasonable control of Provider.
Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed an original and all of which will constitute the same instrument.
Non-Solicitation. Each Party agrees that, during the term of this Agreement and for twelve (12) months thereafter (“Restricted Period”), it will not, directly or indirectly, solicit or induce any employee of the other Party to consider or accept employment with the first Party. Neither Party is prohibited from responding to or hiring employees of the other Party who inquire about employment with the first Party on their own accord or in response to a public advertisement or employment solicitation in general.
Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit, or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms of this Agreement will be more strictly construed against one Party than against the other.
Export Laws Compliance. Neither Party will export, directly or indirectly, any technical data acquired from the other Party pursuant to this Agreement (or any product utilizing such data) to any country for which the United States Government, any agency thereof, or any applicable foreign governmental body at the time of export requires an export license or other governmental approval without first obtaining such license or approval. Each Party will comply with all applicable export and import laws and regulations.
Legal Counsel. Each Party acknowledges that it has had the right to seek independent legal counsel with respect to this Agreement, and that each Party has substantially participated in the drafting and negotiation of this Agreement. No provision hereof will be construed against one Party by virtue of the fact that such provision was drafted by such Party.
Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference:
- Exhibit A: Order Form
- Exhibit B: Data Rights, Licenses and Usage
- Exhibit C: Data Processing Agreement (in the event of any conflict between this Agreement, including Exhibit B, and the Data Processing Agreement regarding the processing of personal data, the Data Processing Agreement controls)
Exhibit A — Order Form
Definition of Services
For the purposes of this Agreement, “Services” shall mean the software as a service (SaaS) offerings provided by Ruby Points, the “Service Provider”, “we” or “us”, including but not limited to, access to the Service Provider’s proprietary software applications, updates, and support services, as detailed in the Service Provider’s service description or order form, which may be amended from time to time. The Services are to be delivered over the internet and are accessible globally, subject to the terms and conditions of this Invoice and the other terms and conditions found above and here https://www.relvino.com/privacy-policy (“Agreements”). By agreeing to this Invoice are also agreeing to the terms and conditions of the Agreements.
Pricing and Payment Terms
This Pricing and Payment Terms outline the financial obligations of you, the Customer, in relation to the Services provided by us. You agree to pay us the fees as specified in the Service Provider’s current price list, service description, or order form, which may be amended from time to time. Unless otherwise agreed in writing, all fees are due and payable on the Invoice signing date.
Pricing is as follows, unless otherwise set out in an Order Form:
- Plan: one monthly plan based on the size of the Customer’s consented list, measured monthly and shown on the invoice. Annual prepayment receives a 10% discount and locks the plan for 12 months.
- Email: included up to 5 times the Customer’s list size per month; beyond that, $0.002 per email.
- Pop-ups: included up to 0.1 times the Customer’s list size per month; beyond that, $0.035 per pop-up. Welcome pop-ups are not charged.
- SMS: $0.0125 per send, including US carrier fees.
- Enterprise plans are available under an Order Form.
Pixel tracking and plugin data collection are provided at no additional charge. All data collection and data rights is governed by the SaaS Agreement found above.
All payments shall be made in US dollars. The Service Provider reserves the right to adjust the pricing for the Services at any time, upon providing the Customer with at least thirty (30) days’ written notice. Such adjustments shall not affect any fees for Services already rendered or for which an invoice has already been issued.
In the event of late payment, the Service Provider may, without prejudice to any other rights or remedies available, charge interest on the overdue amount at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower, from the due date until the date of payment in full.
The Customer is responsible for all taxes, levies, duties, or similar governmental assessments, including, but not limited to, value-added tax (VAT), sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). The Customer shall pay all Taxes associated with its purchases hereunder, except for those based on the Service Provider’s net income. If the Service Provider has the legal obligation to pay or collect Taxes for which the Customer is responsible, the Customer will reimburse the Service Provider unless the Customer provides the Service Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
Term and Termination
Subject to earlier termination as provided below, this Agreement may be terminated by the Customer after a period of three months (“Initial Term”). If not terminated by Customer by written notice to Service Provider, the Initial Service Term shall be automatically renewed for additional periods of the same duration as the Initial Service Term (all such periods of effectiveness are collectively referred to as the “Term”).
Customer may terminate this Agreement for convenience and without cause after the expiration of the Term, and after the Initial Term, upon 60 days written notice. No refund will be due after termination and Customer will pay for all Services contracted for and used during the Term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Service Fees up to and including the last day on which the Services are provided (or, in the case of breach by Service Provider, the last day prior to the date of the breach by Service Provider.
Acceptance of Terms
By accepting this invoice, either by clicking a box indicating your acceptance or otherwise, you, the Customer, agree to be bound by the terms of this Invoice, including all terms incorporated by reference herein such as the terms and conditions of the Agreements. Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to the invoice terms. This agreement constitutes the entire agreement between you and the Service Provider regarding your use of the Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
By accepting the terms of this invoice, you acknowledge that you have read, understood, and agree to be bound by the terms defined herein, including but not limited to the definitions of ‘Services’, ‘Invoice Date’, ‘Taxes’, ‘Confidential Information’, ‘Personal Data’, and ‘Dispute’. Any use of the Services after such acceptance will be considered as an acceptance of any changes or updates to the terms of this invoice.
If you do not agree to the terms of this invoice, do not accept the Invoice, and do not use the Services.
Exhibit B — Data Rights, Licenses And Usage
(a) Subscriber grants to Provider a non-exclusive, worldwide, royalty-free right, during the Term, to use, copy, store, modify, and display the Subscriber Data as necessary to provide the Service in accordance with this Agreement and, solely in de-identified and aggregated form as set forth in the Data Processing Agreement (Exhibit C), to enhance the usability and value of the Services to Subscriber and other subscribers.
(b) Subscriber Data submitted by Subscriber to the Service, whether posted by Subscriber or by an Authorized User, or by an ecommerce site visitor or customers, is the property of Subscriber and Subscriber reserves all right, title, and interest in the Subscriber Data, subject to the rights of Provider in (a) above.
(c) In addition to the rights of Provider in (a) above, Subscriber agrees that Provider may collect, use, and provide certain Authorized User registration and statistical information, such as usage or traffic patterns, in aggregate and de-identified form, consistent with the Data Processing Agreement (Exhibit C), for analytics, product improvement, and benchmarking; such information will exclude contact information and will not identify Subscriber or any individual.
(d) Provider may access Subscriber’s and its Authorized User accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems.
(e) Provider Data collected from its plug-in or website extension is the sole and exclusive property of Provider. If selected by Subscriber by electing the plug-in option on the order form, Provider grants to Subscriber the non-exclusive, worldwide, royalty-free, and non-transferable right to use to use, copy, store, modify, and display the Provider Data in connection with Subscriber's use of the Service and only during the term or any renewal or extension of this Agreement.
