SUBSCRIPTION SERVICES AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between RaveOS, LLC, a Delaware limited liability company (RaveOS), and the Customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE.
This agreement and the applicable order provide Customer and its Affiliates (defined below) access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, and underlying software, as specified on an order (Service).
2. USE OF SERVICE.
- Customer, accepting the terms, confirms that at the time of consent to the terms of this agreement, he has already turned 13 years old.
- Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between RaveOS and Customer (Customer Data). Customer represents and warrants to RaveOS that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use within the Service under this agreement. Customer grants RaveOS the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
- Affiliates and Contractors. Customer, including its Affiliates, may enter into orders with RaveOS and its Affiliates. An Affiliate entering into an order agrees to be bound by this agreement as if it were an original party hereto. Customer may allow its Affiliates and contractors to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for Customer’s or Affiliate’s benefit. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
- Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify RaveOS promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's user guide and applicable law.
- RaveOS Support. RaveOS must provide Customer support for the Service under the terms of RaveOS's Customer Support Policy (Support), which is located at raveos.com/support.
- Free Version. If Customer has registered for a no-charge use of the Service, Customer may access the Service until it is cancelled by RaveOS upon notice via email, or by the Customer. The Service is provided 'AS IS', with no warranty during the no-charge period, and Customer must comply with all free version restrictions as set forth in the user guide. All Customer information will be deleted after the no-charge period ends, unless Customer converts its account to a paid Service.
- Third Party Service. The Service interoperates with third party services (Third Party Service), and it depends on continuing availability of and access to Third Party Service , including application programming interfaces, for full functionality of the Service.
3. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ‘AS IS' WITHOUT WARRANTY. RAVEOS DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE RAVEOS TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, RAVEOS DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
- Fees and Payment. To start or continue using paid services, the Customer must credit to his account an amount sufficient to use the selected services.
5. MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). RaveOS's Confidential Information includes, without limitation, the Service, pricing information, and the Software and Documentation (defined below). Customer's Confidential Information includes, without limitation, the Customer Data.
- Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
Data Security Measures.
- Security Measures. RaveOS: (i) implements and maintains reasonable security measures appropriate to the nature of the Customer Data including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of the Customer Data; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of the Customer Data that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of safeguards in place to control these risks (collectively, Security Measures).
- Notice of Data Breach. If RaveOS becomes aware that Customer Data was accessed or disclosed in breach of this agreement, RaveOS will so notify Customer without undue delay, immediately act to eliminate the breach and preserve forensic evidence, and provide available information to Customer regarding the nature and scope of the breach.
- Reservation of Rights. RaveOS and its licensors are the sole owners of the Service and the Software and Documentation, including all associated intellectual property rights, and they remain only with RaveOS. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. RaveOS reserves all rights that are not expressly granted in this agreement.
- Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation except as allowed by applicable law despite this limitation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. RaveOS may suspend Service to Customer if RaveOS believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, RaveOS will work with Customer to address the issue and restore Service as quickly as possible.
- Software and Documentation. All software provided by RaveOS as part of the Service, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by RaveOS (Software and Documentation) are licensed to Customer as follows: RaveOS grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service.
- Aggregated and Anonymized Data. During and after the term of this agreement, RaveOS may use and owns all aggregated and anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support, and other business purposes.
7. TERM AND TERMINATION.
- Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
- Term of Orders. Unless otherwise stated in an order, orders and all subscriptions under them will automatically renew for additional monthly periods, unless a party notifies the other of non-renewal 30 or more days before the renewal date
- Termination of Free Version. RaveOS may terminate Customer’s use of the Free Version of the Service at any time, for any reason.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
Return of Customer Data.
- Within 60 days after termination, upon request RaveOS will make the Service available for Customer to export Customer Data as provided in Section 2(a).
- After such 60-day period, RaveOS has no obligation to maintain the Customer Data and may destroy it.
- Effect of Termination. If this agreement is terminated for RaveOS's breach, RaveOS will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date. If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders. Upon request, following any termination of this agreement, each party will destroy or return all of the other party’s property that it holds, subject to the “Return of Customer Data” section above.
8. LIABILITY LIMIT.
- EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, RAVEOS IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
- TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR RAVEOS'S INDEMNITY OBLIGATIONS, RAVEOS'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
- CONSUMER LAW NOTICE. WITH RESPECT TO A SALE TO CONSUMERS, SOME STATES MAY NOT ALLOW WARRANTY OR LIABILITY DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS TO APPLY, SO THESE MAY NOT APPLY TO CUSTOMER.
9. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Monterey County, California, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party.
10. OTHER TERMS.
- Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, or it is modified through an online process provided by RaveOS. No waiver is effective unless the party waiving the right signs a waiver in writing.
- No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all a party's businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.
- Export Compliance. The Service, the Software and Documentation, and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to natural weather events and disasters, labor disruptions, and disruptions in the supply of utilities.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
- No Additional Terms. RaveOS rejects additional or conflicting terms of a Customer's form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Mobile Software. RaveOS may make available mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. RaveOS does not warrant that the Mobile Software will be compatible with Customer's mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer's wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that RaveOS may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades.
- Feedback. If Customer provides feedback or suggestions about the Service, then RaveOS (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised May 19, 2021.