i) “Order” means an ordering document (online or otherwise) entered into between Customer and RDA specifying the Service to be provided, including any addenda, exhibits, schedules, and additional terms relevant to a specific Service referenced therein.
k) “Prohibited Data” means: (a) government issued ID numbers such as passport numbers, taxpayer numbers, driver’s license numbers, and social security numbers; (b) individual medical or health information (including, for example, protected health information under HIPAA); (c) individual financial information or full account numbers (including, without limitation, primary account numbers); (d) security codes or passwords (excluding one-time password resets); or (e) “sensitive personal data” under the Directive 95/46/EC, (or after 25 May 2018, “special classes of data” under the EU General Data Protection Regulation) of EU residents or similar information under other comparable laws or regulations.
l) “Recipient” means the person receiving an Email or SMS text.
m) “Service” means RDA’s: (a) proprietary alert subscription and publishing software as a service as specified in the Order; and (b) other related services as may be specified in the Order. “Service” includes the RDA Component, but excludes Third Party Applications.
n) “RDA Data” means all software, documentation, scripts, images, videos, data, templates, information, and other content provided with the Website or Service. o) “RDA Component” means RDA’s proprietary code made available by RDA for use in connection with the Service.
1) ORDERS; ACCOUNT; TERM; SERVICE.
c) Subscriptions. The Service is purchased as a subscription to access and use the Service, in accordance with the applicable Order, only during the Term.
d) Account. After Customer has completed its first Order under the Agreement, RDA will grant Customer a unique account to access the Service (an “Account”). Customer is responsible for the confidentiality and use of all User IDs, passwords, and API Keys. Customer acknowledges that any transaction completed through Customer’s Account is deemed authorized by Customer. Customer remains solely responsible for all costs, fees, liabilities, and damages arising out of access to the Account through its User ID(s).
3) FEES AND PAYMENT.
a) Fees. Customer shall pay all fees specified in all applicable Orders (“Fees”). Except as otherwise expressly specified herein or in an Order: (a) Fees are based on the Service subscribed to and the usage metrics specified in the applicable Order; (b) payment obligations are non-cancelable and Fees paid are non-refundable; and (c) the purchased Service subscription cannot be decreased during the relevant Term.
b) Invoicing and Payment. Unless an Order specifies otherwise, Fees are electronically billed upon execution of the Order. If Customer has specified credit card, or direct withdrawal or ACH payment from a bank account, as an applicable payment mechanism under the Agreement, Customer authorizes RDA or its applicable processing agent to charge the credit card, or debit the bank account, on file for all Fees due. If Customer is using a credit card, Customer represents and warrants that Customer is authorized to use that credit card, and that any and all Fees may be billed to that credit card and shall not be rejected. If RDA is unable to process Customer’s credit card, RDA will try to contact Customer by email and may suspend Customer’s Account until payment is processed. Unless otherwise stated in the Order, all amounts payable shall be in the currency of the United States.
c) Payment Disputes. In the event Customer disputes any portion of the Fees paid or payable by Customer (a “Payment Dispute”), Customer must provide written notice to RDA within seven (7) days of the billing (“Payment Dispute Period”) and the parties will work together in good faith to resolve the Payment Dispute promptly. If Customer does not provide written notice of the Payment Dispute within the Payment Dispute Period, Customer will not be entitled to dispute such Fees paid or payable. d) Late Payments. Customer’s failure to pay any undisputed amounts due under the Agreement on a timely basis will be deemed material breach of the Agreement. If any amount owed by Customer under the Agreement is overdue, RDA may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under the Agreement so that all such fees become immediately due and payable. RDA shall not exercise such acceleration right specified above if Customer timely exercises its right to dispute payments in accordance with Section 4.3 (Payment Disputes). If RDA must take action to collect overdue fees under the Agreement, Customer agrees to pay all reasonable costs and expenses incurred by RDA for collecting such overdue fees including, for example, collection fees, reasonable attorney fees and court costs. e) Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature on the Service including, for example, value-added, sales, use, or withholding taxes assessable in any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase(s) of the Service hereunder, excluding any taxes that relate to the income, property, or payroll of RDA. If Customer does not provide RDA with a valid tax exemption certificate authorized by the appropriate taxing authority and RDA pays Taxes for which Customer is responsible under this Section, RDA shall bill Customer and Customer shall pay that amount to RDA.
5) CONFIDENTIALITY. a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including, for example, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. Customer’s Confidential Information includes Customer Data. RDA’s Confidential Information includes the Service and all non-public information relating to the Service. Notwithstanding the foregoing, each party may disclose the existence and terms of the Agreement, in confidence, to a potential purchaser or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business division, or group of such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party without obligation of confidentiality prior to its disclosure by the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without breach of this Agreement or any obligations owed to the Disclosing Party. b) Protection of Confidential Information. The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party may not use any Confidential Information of the Disclosing Party for any purpose except as expressly permitted in the Agreement. The Receiving Party may disclose Disclosing Party’s Confidential Information to its Affiliates, respective officers, directors, principals, employees, attorneys, and accountants (“Representatives”) only to the limited extent necessary to carry out the purpose of the Agreement. To the extent the Receiving discloses any Confidential Information of the Disclosing Party to any persons other than its Representatives, as condition precedent to disclosure, such recipient must execute a confidentiality no less protective of such Confidential Information before disclosure is made. c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6) REPRESENTATIONS; WARRANTIES; EXCLUSIVE REMEDIES; DISCLAIMERS. a) RDA Warranty. RDA represents and warrants that it will use commercially reasonable efforts to provide Customer the Service in accordance with the Agreement and the Documentation. RDA’s sole obligation, and Customer’s sole and exclusive remedy with respect to any failure by RDA to perform in accordance with the warranty in the preceding sentence, is for RDA in its sole discretion to take commercially reasonable efforts to re-perform the affected Services or refund the Fees paid or payable for Services provided during the period of the failure. b) Mutual Warranties. Each party represents and warrants that: (a) such party has the legal right and authority to enter into the Agreement; (b) such party has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement; (c) this Agreement will constitute such party’s legal, valid, and binding obligation, enforceable against such party in accordance with its terms; and (d) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or third party is required to be obtained by such party in connection with the execution, delivery and performance by it of this Agreement or the taking of any other action contemplated hereby, which has not been obtained. c) Disclaimers. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7.1 AND SECTION 7.2: (a) RDA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY IMPLIED BY APPLICABLE LAW; (b) THE SERVICE AND ANY AND ALL CONTENT OF ANY KIND PROVIDED BY RDA IN CONNECTION WITH THE SERVICE OR THE AGREEMENT IS PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT WARRANTY; AND (c) RDA DOES NOT WARRANT OR GUARANTEE INBOX PLACEMENT RATE (SOMETIMES REFERRED TO AS MESSAGE “DELIVERY”) BECAUSE OF THE GREAT NUMBER OF CONDITIONS, PRACTICES, AND REPUTATIONAL ISSUES OUTSIDE RDA’S CONTROL INCLUDING, FOR EXAMPLE, THE POSSIBILITY THAT RECIPIENTS MAY, AT ANY TIME, BE USING HARDWARE OR SOFTWARE THAT IS NO LONGER SUPPORTED PURSUANT TO THE MANUFACTURER’S END-OF-LIFE POLICY. ANY USE OF THE SERVICE BY CUSTOMER AND ITS USERS IS ENTIRELY AT CUSTOMER’S OWN RISK. IF CUSTOMER MAKES ANY UNAUTHORIZED CHANGES OR MODIFICATIONS TO THE SERVICE, THE WEBSITE, OR THE DOCUMENTATION, THE WARRANTY IN SECTION 7.1 WILL BE NULL AND VOID. IF ANY PART OF THIS SECTION IS DETERMINED TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS AND IMPLIED WARRANTIES WILL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO WARRANTIES OR CONDITIONS WILL APPLY AFTER THAT PERIOD.
7) MUTUAL INDEMNIFICATION. a) RDA Indemnification. RDA shall defend, indemnify and hold Customer harmless from and against any third party claim, demand, suit or proceeding (“Claim”) and related fees and expenses (including reasonable attorney’s fees) made or brought against Customer alleging that the Service, as made available by RDA under the Agreement to Customer, infringes or misappropriates such third party’s copyrights, trademarks or trade secret rights under the laws of the United States. If RDA receives information about an infringement or misappropriation claim related to a Service, RDA may, in its discretion, and at no cost to Customer: (a) modify the Service so that it no longer infringes or misappropriates; (b) obtain a license for Customer’s continued use of that Service in accordance with the Agreement; or (c) terminate Customer’s subscriptions for that Service upon thirty (30) days prior written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim arises from or relates to: (i) Customer Data; (ii) Third Party Applications; (iii) Customer’s or any User’s breach of this Agreement; (v) any modifications of the Service by or for Customer; (vi) use of the Service in combination with another product or service not provided by RDA; or (vii) failure to timely implement any modifications, upgrades, replacements or enhancements made available by RDA to Customer at no additional cost. b) Customer Indemnification. Customer shall defend, indemnify, and hold RDA harmless from and against any Claim and related fees and expenses (including reasonable attorney’s fees) made or brought against RDA in connection with or arising from: (a) Customer Data or Emails; (b) Customer’s or any User’s infringement or misappropriation of intellectual property rights; (c) Customer’s violation of its obligation to a third party; (d) violation of Applicable Laws including the GDPR; and/or (e) Customer’s or any User’s breach of Section 3.b, Section 3.c, or Section 5.d above. This Section provides RDA’s sole and exclusive liability, and your sole and exclusive remedy, for any third party claims related to the Service or the Agreement. c) Indemnification Process. The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of the claim (provided however, the failure to give timely notice will not relieve the indemnifying party of its obligations under this Agreement except to the extent such failure materially impairs the ability of the indemnifying party to defend); (b) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); (c) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense with regard to out-of-pocket expenses, in defense and settlement of any such claim; and (d) not admitting any fault or liability of the indemnifying party or itself.
8) LIMITATION OF LIABILITY. a) Limitation of Liability. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT(S) GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF RDA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. RDA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THE AGREEMENT AT THE CHARGES AGREED TO BY THE PARTIES. b) Exclusion of Consequential and Related Damages. EACH PARTY AGREES THAT THE CONSIDERATION RDA IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY A PARTY OF THE OTHER PARTY’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.