Subscription Agreement
This Subscription Agreement (the "Agreement") governs use of the Services (as defined below) provided between Retrium, Inc., a Delaware corporation having its principal place of business at 8705B Colesville Road, #219, Silver Spring, MD 20910 ("Retrium") and you or the company which you represent and are authorized to bind ("Customer"). If you use the Services, or take any other affirmative action indicating your acceptance of this Agreement, then you have agreed to these terms. If you do not agree to this Agreement, then you are not authorized to use the Services.
1. Definitions
(a) Customer Data. "Customer Data" means any of Customer's information, documents, or electronic files that are provided to Retrium hereunder.
(b) Documentation. "Documentation" means any written, electronic or online user manuals, functional descriptions, or specifications pertaining to the Services, and any derivative works of the foregoing.
(c) Edition."Edition" means the named configuration of the Services that has been licensed to the Customer. An Edition defines what features, limits, and usage restrictions are placed on the Services licensed. From time to time, new features will be introduced to the Services, and those features will be restricted to specific Editions. New named Editions may also be introduced from time to time.
(d) Effective Date. "Effective Date" is the date on which the Customer's subscription to the Services starts.
(e) Error. "Error" means any reproducible material failure of the Services to function in accordance with its Documentation.
(f) Losses. “Losses” means all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.
(g) New Material. “New Material” means any of the following produced, generated, created or discovered by Retrium (alone or jointly with others) in connection with this Agreement: work product, systems, software (including source code and object code), software designs, software programs and programming, technology, documentation, tools, methods, business methods, methodologies, processes, business processes, procedures, interfaces, workflows, inventions, forms, data, data formats, data compilations, designs, specifications, business rules, business logic, and works of authorship.
(h) Order Form(s). “Order Form(s)” means the governing document(s) associated with and signed by Customer subscribing to Retrium’s Business Edition subscription. Order Forms are not required for Team Edition subscribers. The Order Form(s) will outline additional terms associated with the Business Edition subscription. Additional Order Form(s) can be attached to (and all Order Forms are governed by the terms of) this Agreement. If there is an inconsistency between this Agreement and an Order Form(s), the Order Form(s) shall prevail.
(i) Personal Information. "Personal Information" means information that may be used to readily identify or contact an individual person, such as: name, address, email address, or phone number. Personal Information does not include information that has been anonymized such that it does not allow for the ready identification of specific individuals.
(j) Services. "Services" means the system and/or software service for which Customer has paid, including any Updates relating thereto (and related services, including Support) that may be provided hereunder, and any modification, enhancement, integration and derivative works of the foregoing.
(k) Support. "Support" means the professional services provided by Retrium to support the Services, as defined in Section 3 below.
(l) Update. "Update" means any patch, bug fix, release, version, modification or successor to the Services.
(m) User. "User" means any individual who has a need to access the Services on behalf of Customer and to whom Customer has granted access to use the Services on Customer's behalf, regardless of whether or not the User actually accesses the Services, and regardless of whether or not the User has established a Retrium account.
2. License
(a) Account Registration. Customer may need to register for a Retrium account in order to place orders or access the Services. Any registration information that Customer provides to Retrium must be accurate, current, and complete. Customer must also keep this information accurate, current, and complete so that Retrium may send notices, statements, and other information by email or through Customer's account. An individual may only register for a single Retrium account and all accounts are granted to a single individual and may not be shared, without Retrium's prior written permission. Customer shall be responsible for compliance with this Agreement by Users and for all acts and omissions of Users under or in connection with the Agreement.
(b) License. Subject to the terms herein and to Customer’s and its Users’ continuing compliance with this Agreement, including timely payment of applicable fees, Retrium hereby grants to Customer a limited, non-exclusive, non-transferable (except as provided below in this paragraph), non-sublicensable right and license during the Term (i) to access and use the Services for its internal business purposes and (ii) to use the Documentation for the purposes of supporting the permitted uses of the Services. Customer may assign the license above to a transferee to which Customer voluntarily transfers all of its assets, so long as the transferee executes Retrium's standard agreement agreeing to be bound by all of the terms and conditions of this Agreement.
(c) Restrictions. Except as expressly permitted hereunder, Customer and its Users agree not to (and Customer agrees not to allow or cause Users or any other entity to): (i) copy, disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from (or extract any trade secrets from) the Services; (ii) modify, translate, or create derivative works of (or a competitive alternative to) the Services; (iii) knowingly or intentionally copy or use the Services in a way that infringes, misappropriates, or violates any Intellectual Property Rights of Retrium or any third party; (iv) sell, assign, transfer, pledge, rent, lease, distribute, sublicense, loan or permit a lien upon the Services to any third party; (v) use the Services to operate the business of a third party or to process data or content provided by a third party for the operation of a third party’s business, or to act as a service bureau or a licensor of services to any third party; (vi) use the Services (a) to violate, or encourage the violation of, the legal or privacy rights of others, (b) to engage in, promote or encourage illegal activity, or (c) for any unlawful, invasive, defamatory or fraudulent purpose; (vii) perform penetration testing, vulnerability testing or other security testing on the Services (or Retrium’s systems or networks) or otherwise attempt to gain unauthorized access to the Services (or Retrium’s systems or networks); (viii) take any action designed or intended to interfere with the proper working of the Services or to circumvent, disable, or interfere with security-related features of the Services, or features that prevent or restrict use of the Services or enforce limitations on use of the Services; (ix) transfer or otherwise grant any rights in the Services to any other party or (x) use the Services in any manner that is inconsistent with the Agreement.
(d) Customer Data. Customer owns all rights, title and interest in the Customer Data. Customer hereby grants to Retrium, a non-exclusive, non-transferable, non-sublicensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of supporting Customer's use of the Services. Retrium shall not use the Customer Data except as necessary to perform its obligations hereunder.
(e) No Sensitive Data. Customer acknowledges that the Services are not intended for use with (i) protected health information under HIPAA, (ii) credit card numbers, (iii) financial account numbers, (iv) Personal Information (provided that the parties acknowledge that Users may provide their first and last name and their email address, in order to access the Services (“User Access Information”)), or (v) other similarly-sensitive data (items (i)-(v) collectively, but not including User Access Information, the “Sensitive Data”), and that Customer assumes all risk arising from use of any such Sensitive Data with the Services, including the risk of any inadvertent disclosure or unauthorized access thereto. Customer acknowledges that Retrium is not acting as a Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that Retrium is not HIPAA compliant. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Retrium shall have no liability under this Agreement for Sensitive Data.
(f) Security. Customer is solely responsible for (i) maintaining the security of all usernames and passwords granted to it, (ii) the security of its information systems used to access the Services, and (iii) its Users' compliance with the terms of this Agreement. Customer agrees to notify Retrium immediately of any unauthorized use of Customer’s account(s) or any other breach of security and to provide properly documented evidence as requested by Retrium. Customer agrees that Retrium will not be liable for any loss Customer may incur as a result of someone else using Customer’s account(s), usernames or passwords, either with or without Customer’s knowledge, and Customer further agrees that Customer will be liable for all losses incurred by Retrium or another party due to someone else using Customer’s account(s), usernames or passwords. Retrium has the right at any time to suspend access to the Services, if Retrium reasonably believes that such suspension is necessary to preserve the security, integrity, or accessibility of the Services. Subject to Section 2(e), Retrium will take commercially reasonable precautions during the Term to prevent the loss or alteration of Customer Data in Retrium's possession. Nevertheless, Customer understands that use of the Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Retrium, and Retrium is not responsible for any Customer Data lost, altered, intercepted or stored across such networks. Retrium cannot guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure, or that unauthorized third parties will never be able to defeat Retrium's security measures or those of Retrium's third party service providers.
(g) Data Responsibility. Customer (i) shall comply with all applicable local, state, federal, and international laws, statutes and regulations that are applicable to or enforceable against it or its personnel in relation to their activities under or pursuant to the Agreement ("Laws") and (ii) shall ensure that its use of the Services and its provisions and use of Customer Data is at all times compliant with Laws. Customer represents and warrants that: (a) Customer has obtained all necessary rights, releases, and permissions to provide all Customer Data to Retrium and to grant the rights granted to Retrium in this Agreement and (b) Customer Data and its transfer to and use by Retrium as authorized by Customer under this Agreement do not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of Retrium's Privacy Policy. Other than its security obligations provided in Section 2(f) of this Agreement, Retrium assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
(h) DPA. Except for User Access Information and as otherwise agreed by the parties in writing, Customer will not provide Retrium with any Personal Information. Personal Information (or other personal data) that is agreed to be exchanged between the parties (including User Access Information) will be subject to Retrium’s DPA available at https://www.retrium.com/gdpr. Additionally, with respect to Customer’s non-public personal information of EU individuals, Retrium complies with the EU Controller to Processor Standard Contractual Clauses (SCCs).
3. Support
(a) Services Generally. Subject to the terms of this Agreement, and throughout the Term, Retrium will use commercially reasonable efforts to make the Services available to Customer.
(b) Updates. Retrium shall deliver all bug fixes to the Services at no additional charge. From time to time, new features are released that are applied selectively to different Editions of the Services. Only those Updates that apply to Customer's currently licensed Edition will be delivered at no additional charge.
(c) Error Correction. Retrium shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Retrium's normal business hours. Customer shall provide such access, information, and support as Retrium may reasonably require in the process of resolving any Error. This paragraph is Customer's sole and exclusive remedy for Errors with respect to the Services.
(d) Exclusions. Retrium is not obligated to correct any Errors or provide any other support to the extent such Errors were created in whole or in part by: (i) the acts, omissions, negligence or willful misconduct of Customer (or those operating under its direction or control), including any unauthorized modifications of the Services or its operating environment; (ii) any failure or defect of Customer's or a third party's equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Retrium's firewall); (iii) Customer's use of the Services other than in accordance with the Services' Documentation; or (iv) a force majeure event.
(e) Savings Clause. Retrium’s nonperformance of its obligations under this Agreement shall be excused if and to the extent (i) such Retrium nonperformance results from a Customer action, omission or failure to perform Customer’s responsibilities and (ii) Retrium provides Customer with reasonable notice of such nonperformance.
4. Financial Terms
(a) Fees. Customer shall pay to Retrium all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer hereby authorizes Retrium to charge such fees using Customer's selected payment method. If Customer's use of the Services exceeds the limits set by the terms of its license, or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage, and Customer agrees to pay the additional fees in the manner provided herein. All dollar amounts refer to U.S. dollars. If Customer requires the use of a purchase order or purchase order number, Customer must provide the purchase order number at the time of purchase.
(b) Taxes. Customer shall pay or shall reimburse Retrium for all sales taxes and other taxes, however characterized by the taxing authority, arising out of the provision of (or Customer’s use of) the Services or arising out of the license fees or other charges under this Agreement, except for any taxes based upon Retrium's net income or gross receipts. If Customer is a tax-exempt organization, then upon Retrium's receipt of written evidence of such status, Retrium shall not charge Customer for any taxes from which Customer is exempt.
(c) Pricing Changes. Retrium may revise fee rates for the Services from time to time and at any time and will provide Customer with notice of any changes at least thirty (30) calendar days before changes in pricing. Price changes will only take effect for Customer after Customer's then-current, purchased subscription term for the Services expires (i.e., when an additional, purchased subscription term for the Services (and/or a renewal of Customer’s subscription for the Services) takes effect).
5. Term and Termination
(a) Term. This Agreement will commence on the Effective Date and remain in effect until Customer terminates its subscription to the Services or until this Agreement is otherwise terminated as provided herein (the “Term”). If Customer purchases additional subscription terms for the Services (and/or renews its subscription for the Services), then the Term of this Agreement shall continue in effect. Upon termination of this Agreement, Customer shall immediately pay Retrium any amounts payable or accrued but not yet paid to Retrium, including any deferred payments or payments originally to be made over time.
(b) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within ten (10) calendar days after receipt of written notice from the other party specifying the amounts owed;
if the other party has committed any material breach of its obligations under this Agreement and has failed to cure such breach within thirty (30) calendar days after receipt of written notice from the non-breaching party specifying in reasonable detail the nature of the breach; or
upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within thirty (30) calendar days of commencement.
(c) Termination or Suspension. Upon written notice to Customer, Retrium may terminate the Agreement and/or suspend performance of Services, if (i) Retrium’s agreement with any third party hosting provider for the Services is terminated (or the services provided by such hosting provider otherwise are materially impacted); in such event, Retrium will use commercially reasonable efforts to promptly establish replacement hosting services or (ii) Customer has materially breached Section 2(c) (Restrictions).
(d) Termination for Convenience. Customer may terminate this Agreement at any time, for any reason or no reason, by providing thirty (30) calendar days’ prior written notice to Retrium of its intent to terminate the Agreement.
(e) Refunds. Within thirty (30) calendar days after the Effective Date, Customer may cancel this Agreement for any reason or no reason and receive a full refund of amounts paid. Following thirty (30) calendar days after the Effective Date, no refunds of amounts paid will be owed or given, except that Retrium will refund to Customer amounts pre-paid for Services not received in the event that Retrium terminates the Agreement pursuant to Section 5(c)(i) above.
6. Confidentiality
(a) Confidential Information. "Confidential Information" means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) nonpublic information relating to a party's technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Customer or Retrium is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any nonpublic information relating to any activities conducted hereunder. Any information regarding APIs for the System is Confidential Information of Retrium. Any data uploaded to the System is Confidential Information of Customer.
(b) Exclusions. Notwithstanding the above, the term "Confidential Information" does not include any information that, as evidenced by written documentation: (i) is already known to the Recipient without restrictions at the time of its disclosure by Discloser and is not acquired directly or indirectly from Discloser; (ii) is or becomes part of the public knowledge without violation of this Agreement; (iii) after its disclosure by Discloser, is legally received by Recipient from a third party who is not bound by or subject to any agreement which provides for confidentiality of the Confidential Information; or (iv) is independently developed outside of this Agreement by Recipient, without reliance on or knowledge of Confidential Information. In addition, a party shall not be considered to have breached its obligations hereunder by disclosing Confidential Information to its attorneys, auditors, and other professional advisors in connection with services rendered by such advisors, provided that such party has confidentiality agreements with such advisors or such advisors owe professional confidentiality obligations to the party.
(c) Use of Confidential Information. Each party agrees (i) to protect such information with the same degree of care that such party exercises with its own Confidential Information (but in no event less than a reasonable degree of care); (ii) not to divulge any Confidential Information to any third party (except as permitted herein); (iii) to use reasonable efforts to limit disclosure of Discloser’s Confidential Information to the employees, consultants, contractors and subcontractors of Recipient who have a legitimate “need to know” the same and who are bound in writing to obligations substantially equivalent to those in this Section 6; and (iv) to access and use the Discloser’s Confidential Information only in furtherance of activities contemplated by this Agreement, without the prior written consent of Discloser.
(d) Required Disclosures. Recipient may disclose Confidential Information of the Discloser without liability hereunder, to the extent such disclosure is required or compelled by court order, subpoena, or other valid administrative or judicial notice to disclose any Confidential Information, provided that the Recipient: (i) restricts such disclosure to the maximum extent legally permissible; (ii) notifies the Discloser (to the extent it may legally do so) of any such requirement; and (iii) cooperates with the Discloser (at the Discloser’s expense) in the event the Discloser elects to request confidential treatment or otherwise contest or avoid such disclosure.
(e) Return of Information. Upon termination or expiration of this Agreement, if the Recipient receives a written request within sixty (60) days after such termination or expiration describing Confidential Information of Discloser given hereunder that Discloser elects should be returned or destroyed, Recipient will return or destroy such Confidential Information. If the Confidential Information is destroyed rather than returned, Recipient will provide a written certification of the same. If no such request is received within sixty (60) days after such termination or expiration, then the Recipient shall have the right to destroy such Confidential Information. Notwithstanding the foregoing, Recipient may retain Confidential Information: (i) to comply with its internal data retention, archival, or compliance policies, (ii) to comply with applicable law, (iii) that is subject to a claim, dispute or lawsuit or in any other circumstances in which the Recipient reasonably believes that destruction of Confidential Information would be unethical or unlawful, or (iv) that is maintained on routine computer backup systems (until such backups are destroyed), provided that any such retained Confidential Information shall remain subject to the obligations in this Agreement.
(f) Survival. Each party’s obligations hereunder with respect to each item of Confidential Information will apply during the Term of this Agreement and continue for three (3) years after the expiration or termination of this Agreement, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect for so long as the trade secret is maintained.
7. Intellectual Property
(a) Intellectual Property. As between Retrium and Customer, Retrium shall remain the sole and exclusive owner of, and shall retain and own all rights, title and interest in and to (including all Intellectual Property Rights in): the Services; all software, workflow processes, user interface, designs and other technologies provided by Retrium as part of the Services; and the New Material (collectively, “Retrium Material”). All rights in and to the Retrium Material not expressly granted herein are reserved to Retrium. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) or restrictive legends of Retrium. Retrium, the Services, the Retrium logo, and all other trademarks, service marks, graphics and logos used in connection with Retrium or the Services are trademarks or registered trademarks of Retrium or Retrium's third party licensors. Customer's use of the Services grants Customer no right or license to reproduce or otherwise use any Retrium or third-party trademarks.
(b) During and after the Term of this Agreement, Retrium may use and owns all anonymized data within the Services for purposes of enhancing the Services, aggregated statistical analysis, technical support and other business purposes. If Retrium receives from Customer or any User any suggestions, ideas, modifications, feedback, error identifications, or other information related to the Retrium Material or any other Retrium product or service (“Feedback”), Retrium may use, disclose and exploit such Feedback without restriction or obligation.
8. Indemnification
(a) Retrium Indemnification. Retrium shall defend, indemnify and hold harmless Customer, its affiliates, and their respective officers, directors, employees, shareholders, successors and assigns from and against any claims and actions (“Claims”) brought by an unaffiliated third party against Customer, and from associated Losses, arising from or related to an allegation that the use in accordance with this Agreement of the Services infringes or other violates the Intellectual Property Rights, privacy, publicity, or other personal or proprietary rights of the unaffiliated third party. Notwithstanding the foregoing, Retrium shall have no obligation with respect to infringement or violation of third party rights as provided above, to the extent such Losses arise out of: use of the Services other than as specified in the Agreement or Documentation; alteration of the Services by anyone other than Retrium or its agents, which alteration was performed without Retrium’s prior written authorization; or the combination, operation or use of the Services with software, other technology or services not provided by Retrium, where but for such combination, operation, or use there would have been no infringement or violation claim. If the Services becomes the subject of such a claim of infringement or violation then Retrium may, at its option: (i) procure for Customer the right to use the Services free of any liability for infringement; (ii) replace or modify the Services to make it non-infringing but with reasonably comparable functionality; or (iii) if Retrium determines that the previous two options are not available on a commercially reasonable basis, grant to Customer a credit for the unused portion of any prepaid access rights fees and refund any deposits paid by Customer for the affected Services. Indemnification and the obligations pursuant to this paragraph are Customer’s sole and exclusive remedy for any such Claims and Losses.
(b) Customer Indemnification. Customer shall defend, indemnify and hold harmless Retrium, its affiliates, and their respective officers, directors, employees, shareholders, successors and assigns from and against any Claims brought by an unaffiliated third party against Retrium, and from associated Losses, arising from or related to (i) the posting, display, distribution, broadcast, or other use of Customer Data by or on behalf of Customer, including Claims that any such use infringes or otherwise violates the rights of any unaffiliated third party, including Intellectual Property Rights, privacy, publicity, or other personal or proprietary rights, or that the Customer Data posted, displayed, distributed, broadcast, or otherwise published violates law or contains libelous, defamatory, or otherwise injurious or unlawful material; (ii) any breach of Section 2(c) (Restrictions) or Section 7 (Intellectual Property Rights) by or on behalf of Customer; or (iii) use or misuse of the Services by or on behalf of Customer, including any use of the Services other than in accordance with the Agreement.
(c) Indemnification Process. The party seeking indemnification (“Indemnified Party”) shall provide the other party (“Indemnifying Party”) prompt written notice of each Claim, provided that failure or delay to provide notice will not release the Indemnifying Party from obligations, except to the extent that the Indemnifying Party is prejudiced. The Indemnifying Party shall defend the Claim and have sole control over the defense and settlement of the Claim, provided that it notifies the Indemnified Party of its election to do so within fifteen (15) calendar days after receipt of the notice above. The Indemnified Party (i) shall be entitled to participate in the defense and employ counsel at its own expense and (ii) will reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnifying Party shall not settle any Claim without written consent of the Indemnified Party, except for a complete settlement requiring only payment of money damages by the Indemnifying Party. If the Indemnifying Party fails to acknowledge its obligations or fails to assume the defense of the Claim, the Indemnified Party shall have the right to defend the Claim as it may deem appropriate, at the expense and risk of the Indemnifying Party.
9. Warranties
- Specific Warranties. Each party represents, warrants and covenants to the other party that: (i) it has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and (ii) the individual executing the Agreement on behalf of such party is duly authorized to execute this Agreement on behalf of such party and that such execution and delivery makes this Agreement a valid and binding obligation of such party for all purposes.
- Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, RETRIUM MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE AGREEMENT AND THE SERVICES, INCLUDING THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, RETRIUM DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE. WHILE RETRIUM TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, RETRIUM DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED. RETRIUM MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE (EVEN IF INFORMED OF SUCH PURPOSE), ACCURACY, TITLE, NON-INTERFERENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
10. Liability
- Disclaimer. IN NO EVENT WILL RETRIUM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST ASSETS, LOST EARNINGS, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF REPLACEMENT OF GOODS OR SERVICES OR COST OF COVER, LOSS OF DATA OR TECHNOLOGY, UNAUTHORIZED ACCESS TO DATA OR INFORMATION, OR COSTS OF DELAY (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE PROVISION OF THE SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM (WHETHER IN CONTRACT OR TORT OR OTHERWISE, INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT).
- Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN SECTION 10(c), IN NO EVENT WILL RETRIUM'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE PROVISION OF THE SERVICES (WHETHER IN TORT, CONTRACT, OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EXCEED THE TOTAL FEES PAID TO RETRIUM UNDER THIS AGREEMENT, DURING THE THREE (3) MONTHS PRIOR TO THE MOST RECENT EVENT GIVING RISE TO LIABILITY HEREUNDER.
- Exceptions. The foregoing limitations of liability in Section 10(b) will not apply with respect to (i) any claims that are the subject of indemnification under this Agreement; (ii) fees and other amounts payable to Retrium for the Services; or (iii) Customer’s misappropriation or misuse of the Services in breach of the terms of this Agreement.
- Force Majeure. Neither party shall be liable for any default or delay in its obligations under this Agreement (other than the obligation to pay amounts due hereunder): (i) if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, pandemic, elements of nature or acts of God, riots, war, terrorism, or any other similar cause beyond the reasonable control of such party, and (ii) provided the non-performing party is without fault in causing such default or delay.
11. General
- Notice. Any notice, request, or demand under this Agreement (other than routine operational communications) shall be in writing and shall be deemed duly given by either party to the other party as follows: (i) for notices, requests, or demands sent to Retrium: (A) upon Retrium’s receipt of an email sent to legal-notices@retrium.com or (B) upon the date of receipt, if hand delivered against a signed receipt; and (ii) for notices, requests, or demands sent to Customer: (A) one (1) business day after deposit for next business day delivery, with an express overnight courier with a reliable system for tracking delivery, if addressed to Customer at the address provided to Retrium pursuant to this Agreement, (B) upon Customer’s receipt of an email sent to the email address provided by Customer, when Customer registers with Retrium and/or creates an account with Retrium, or (C) upon the date of receipt, if hand delivered against a signed receipt. Either party may change its applicable notice address by a notice given to the other party in the manner set forth herein.
- Relationship of Parties; Beneficiaries. The parties are independent contractors with respect to each other; no contract of agency is intended to be created hereby. Except as provided in Section 8 (Indemnification), this Agreement (i) is entered into solely between, and may be enforced only by, Retrium and Customer and (ii) shall not be deemed to create any rights in third parties, or to create any obligations of a party to any such third parties.
- Promotional Materials. Either party may include statements, and may use the other party's name and logos, in its website, commercial advertisements, and promotional materials for the sole purpose of indicating that Customer is a user of the Services. Customer may request that Retrium stops doing so by submitting an email to support@retrium.com at any time, and Retrium may request that Customer stop doing so by submitting a notice pursuant to Section 11(a) above. Please note that it may take Retrium up to 30 days to process such a request from Customer.
- Counterparts and Interpretation. This Agreement, and any modifications or amendments thereto, may be executed in several counterparts and by scanned, digital, electronic or .pdf signature, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same agreement between the parties with the same effect as if all the signatures were upon the same instrument. The word “including” (and its derivative forms such as “include” and “includes”), whether or not capitalized, means “including without limitation”.
- Assignment. Customer shall not assign any of its rights under this Agreement, except with the prior written approval of Retrium, which shall not be unreasonably withheld, provided that Customer may assign the license as provided in Section 2(b) above. Any purported assignment of rights in violation of this Section is void.
- Governing Law; Venue. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to its conflict of laws principles). The UN Convention on Contracts for the International Sale of Goods does not apply. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled by binding, confidential arbitration, in accordance with the Comprehensive Arbitration Rules (“Rules”) of the Judicial Arbitration and Mediation Service (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Montgomery County, Maryland, in the English language, and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to recover its attorneys’ fees and costs from the other party.
- Survival. The provisions in Sections 1, 2(c), and 6-11, in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
- Severability; Waiver. If any provision of this Agreement is held invalid, illegal or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; the remainder of this Agreement shall remain in full force and effect. Failure or delay by either party to exercise any right or power under this Agreement or to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition. A waiver of a breach of any provision to this Agreement will not constitute a waiver of any other breach. The remedies set forth in this Agreement are cumulative and in addition to those allowed at law or in equity.
Entire Agreement and Amendment. This Agreement, together with the Terms of Use, Privacy Policy, Data Processing Agreement and, in the instance of Business Edition subscribers, the Order Form(s), (collectively the Agreement), constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersede any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Any conflicting provisions of any Customer purchase order or other business form are expressly rejected. This Agreement may be amended or changed only by a writing signed by authorized representatives of both parties.
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