Terms of Service
Updated: January 12, 2022
Riverscape Software, Inc. (“we,” “our,” “us” or “Riverscape”), home to the InfoSquirrel™ Contract Teaming and Proposal Management Platform, is an Ohio Corporation that provides a variety of online-based software platforms, solutions, content, websites, works, products and services (collectively, “Services”). Your access to and use of the Services are subject to these terms of services (“Agreement”). This Agreement is a legal agreement between you (“you,” “your” or “customer”) and us.
We may, from time to time, change this Agreement. Such changes will be posted on our website or in the Services. We may also inform you of the changes via other means (e.g., email). You are responsible for reviewing the Agreement and the changes. By continuing to access or use the Services, you agree to and accept all such changes. If you do not agree with the changes, you must stop using the Services.
YOU AGREE TO THE ARBITRATION AND CLASS ACTION WAIVER CLAUSES AND THE AUTO-RENEWAL AND CANCELLATION CLAUSES SET FORTH BELOW.
1.1 Account. Use of our Services requires you to set up an account. If an account is created, you must provide us with true, current, complete, and accurate information as prompted by the registration form, and you must maintain and promptly update such information to keep it true, current, complete, and accurate. You may not transfer or share your account with others. You are responsible for the security and use of your account and login information and all activities that occur under your password or account. You must not allow your login information to be disclosed to or used by others. You must notify us immediately of any unauthorized use of your account or any other breach of security. We are not liable for any loss that you may incur as a result of your acts or omissions or as a result of someone else using your password or account. Even if you give us notice, you are responsible for losses incurred by us or other parties. You may not use anyone else’s account at any time, without the permission of the account holder.
1.2 Verification, Access, and Changes. You agree that we may, without any obligation, independently verify any information that you provide in connection with the Services, including account information. While we are committed to using reasonable efforts to make the applicable Services and content available, the Services and content may become unavailable or interrupted from time to time. We reserve the right, in our sole discretion, to deny, modify, or suspend access to or use of the Services to anyone at any time and to make changes to the Services and the Riverscape Property described in Section 3.2, including changes that we deem useful to comply with applicable law or to maintain or enhance (a) the quality, access, or use of/to the Services, (b) the competitive strength or market for/of the Services, or (c) the cost, efficiency, or performance of the Services.
1.3 Types of Services. We offer our Services pursuant to our subscription plans (e.g., a monthly subscription plan or an annual subscription plan). In addition, we may offer our other Services pursuant to one or more SOWs described below. An SOW describes the details about the specific tasks and the applicable fees. The SOWs and their changes are not binding until signed by both you and us. Unless agreed otherwise in an applicable SOW, each SOW requires a valid, current, paid subscription plan, and each SOW will terminate upon the earliest occurrence of any of the following: (a) completion of the tasks applicable to the SOW, (b) the end of the then-current subscription period if the then-current subscription plan is not renewed, (c) termination of this Agreement, your account, or your access or use of the applicable Services, or (d) expiration of the SOW or this Agreement.
The term “Statement of Work” or “SOW” means a statement of work, an order, a similar document, or their changes, agreed and signed by you and us in writing, that describe details about the Services (other than the Services offered under our subscription plans) and the applicable fees. An SOW may be signed using electronic signatures in counterparts. The SOWs are part of this Agreement and are incorporated herein by reference.
1.4 Third-Party Sites and Content. The Services may include or provide links to third-party websites or other resources (“Third-Party Sites”) or content owned or provided by other users or third parties (“Third-Party Content”). We have no control over these Third-Party Sites or Third-Party Content and are not liable for any actual or alleged damage or loss caused by or in connection with any Third-Party Site or any Third-Party Content, including any damage or loss relating to personally identifiable or confidential information. The availability of any Third-Party Site or any Third-Party Content is not an endorsement of any materials thereof or any indication that such materials are accurate, useful, or non-harmful. You are solely responsible for your use of any Third-Party Sites and any Third-Party Content.
1.5 Third-Party Services. We may use third-party service providers in connection with the Services, for example, in connection with using or providing certain networks, servers, hardware, software, databases and tools, and/or processing and storing the Customer Content (see Section 3.5) and subscription/payment data, including credit card data. All third-party services are provided in accordance with such third parties’ safeguards and terms for protecting, processing, storing, and providing services, data, and content. We are not liable for any actual or alleged damage or loss caused by or in connection with any third-party services, including any third-party payment processing services, or by or in connection with any Customer Content, including any personally identifiable or confidential information. You are responsible for all transactions made through any third-party service providers, including third-party payment processors. When you enter into a transaction, you should verify that the transaction has been successfully processed.
1.6 Geographic Limitations. The Services are controlled, operated, and administered by us from our offices within the United States. If you access the Services from a location outside the United States, you assume all risks and are solely responsible for compliance with all applicable laws. We disclaim all liabilities outside the United States.
2. Payment, Auto-Renewal, and Cancellation.
2.1 Fees. You agree to pay us the charges associated with your access to or use of the Services, including the fees for a subscription plan selected by you, the fees set forth in any SOWs ,and fees mutually agreed, and other related charges such as taxes and possible transaction fees (collectively, “Fees”). All Fees for the subscription plans must be paid in advance. After your payment for the selected subscription plan is received by us and verified, you may access the Services applicable to such paid subscription plan during the applicable subscription period. Unless agreed otherwise in an applicable SOW, all Fees relating to the SOWs must be paid in advance.
2.2 Changes to Fees and Plans. We reserve the right to change our subscription plans and change or increase the Fees at any time in our sole and absolute discretion. Except as otherwise explicitly specified in this Agreement, any changes to the subscription plans or the Fees will take effect following notice to you (e.g., sending an email or posting the changes on our website or in the Services). The Fees set forth in any SOWs may be changed only by mutual agreement.
2.3 AUTO-RENEWAL AND CANCELLATION. UNLESS CANCELLED BY YOU, YOUR SUBSCRIPTION PLAN WILL AUTOMATICALLY RENEW AT THE END OF EACH THEN-CURRENT SUBSCRIPTION PERIOD, AND YOU WILL BE AUTOMATICALLY CHARGED. THE LENGTH OF EACH NEXT SUBSCRIPTION PERIOD WILL BE THE SAME AS THE LENGTH OF THE THEN-CURRENT, PAID SUBSCRIPTION PERIOD. THE FEES FOR EACH NEXT SUBSCRIPTION PERIOD WILL BE OUR APPLICABLE FEES IN EFFECT AT THE TIME OF THE RENEWAL. SUCH FEES MAY BE HIGHER THAN THE FEES FOR THE THEN-CURRENT SUBSCRIPTION PERIOD. YOU MAY CANCEL YOUR SUBSCRIPTION PLAN AT ANY TIME BEFORE IT IS RENEWED (I.E., BEFORE THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD). UPON CANCELLATION, YOU MAY CONTINUE TO ACCESS THE APPLICABLE SERVICES UNTIL THE END OF THE THEN-CURRENT, PAID SUBSCRIPTION PERIOD, AT WHICH TIME YOUR ACCESS TO THE SERVICES WILL CEASE. REFER TO THE “FEAUTURES, PLANS AND PRICING” PAGE OF OUR WWW.INFOSQUIRREL.COM WEBSITE FOR MORE INFORMATION. IF A THIRD-PARTY PAYMENT PROCESSOR IS USED, CHECK WITH SUCH THIRD PARTY FOR DETAILS. YOU ACKNOWLEDGE AND AGREE TO THE AUTO-RENEWAL AND CANCELLATION PROVISIONS.
2.4 Payment. You must provide and maintain a valid, current payment method(s) acceptable to us, which may be processed and/or stored by third parties. You authorize us and third-party payment processors to charge and process any Fees owed or agreed to by you. You remain responsible for all such Fees. If third-party payment processors are used, check with such third parties for details. If your payment is declined, not received, or not verified, we and/or third-party payment processors may, without liability, (a) charge and process such payment, (b) suspend your access to the Services until such payment is received and verified, and/or (c) immediately terminate your access to and use of the Services. We reserve the right to charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law. If the Fees are invoiced to you, you agree to pay the invoiced amount in full within thirty (30) days of the invoice date unless another period is explicitly specified and agreed in writing by us for the invoice.
2.5 No Refund. All Fees and payments are non-refundable (upon cancellation, termination, expiration, or otherwise). No refunds or credits will be provided, except as required by applicable law.
2.6 Expenses. For the Services provided pursuant to any SOWs, you agree to promptly reimburse us for any out-of-pocket expenses incurred in connection with performing the Services.
2.7 No Setoffs. All Fees must be paid in full without any setoff, recoupment, counterclaim, deduction, or withholding for any reason, unless required by law.
3. Licenses, Ownership, Restrictions, and Customer Content.
3.1 License. Subject to the terms and conditions of this Agreement and subject to your full compliance with this Agreement, Riverscape hereby grants you, during a valid, paid subscription plan period(s), a limited, personal, non-exclusive, non-transferable, fee-bearing, revocable, and non-sublicensable license for you to access and use the Services internally, as provided to you by us, as authorized by us, and in accordance with our instructions, postings, and documentation. This license is terminated when this Agreement is terminated or expired.
3.2 Riverscape Property. Riverscape is the exclusive owner of and has all rights, title, and interest in and to the Services, any and all software, hardware, devices, systems, methods, processes, data, databases, user interfaces, tools, information, materials, works, technologies, inventions, manuals, user guides, deliverables, and documentation relating to the Services (including any and all statistical and performance information relating to the Services based on monitoring of the Services and the access and use thereof by you and others), any and all other materials prepared or provided by Riverscape, and any and all modifications, updates, and derivative works thereof, as well as all copyrights, patents, trademarks, trade secrets, and other intellectual property or proprietary rights and any other rights therein (collectively, “Riverscape Property”). Except as explicitly licensed to you in Section 3.1, no right is granted to you to any Riverscape Property, whether by implication, estoppel, or otherwise, and Riverscape reserves all rights, title, and interest in and to the Riverscape Property.
3.3 Feedback. For any feedback, suggestions, ideas, requests, responses, improvements, and modifications that you provide relating to the Services (“Feedback”), you hereby grant Riverscape a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable (for multiple tiers), transferable license, throughout the world and the universe under and to the Feedback and all intellectual property and proprietary rights therein, to internally and externally (without restriction) reproduce, prepare derivative works based upon, display, perform, distribute, use, make, sell, offer to sell, transfer, rent, lease, lend, import, export, execute, stream, produce, transmit, retransmit, brand, advertise, merchandise, and exploit any and all Feedback, copies, derivative works, products, methods, and services. You also waive, and will cause waiver of, any “moral rights” in and to the Feedback, to the maximum extent of applicable law.
3.4 Restrictions. Except as otherwise explicitly specified in Section 3.1 or by applicable law, nothing in this Agreement will be construed as an implied grant to you of any right to, and you will not, and will not permit any person or entity to:
(a) use or reproduce any software of the Riverscape Property in source-code format;
(b) decompile, disassemble, reverse-engineer, or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any Riverscape Property;
(c) remove, delete, modify, alter, create derivative works of, copy, reproduce, translate, adapt, disclose, make available, distribute, rent, lease, lend, transfer, upload, monitor, time-share, encumber, sell, assign, license, sublicense, display, or transmit any Riverscape Property, in any manner;
(d) publish or disclose the results of any benchmark tests relating to any Riverscape Property;
(e) frame, use framing technology, or use metatags or hidden text to include any Riverscape Property or any name, marks, or intellectual property of Riverscape;
(f) engage in spamming, mailbombing, spoofing, or other activities that interfere, damage, restrict, or impair any Riverscape Property or Riverscape’s provision of Services to you or others, or engage in any other fraudulent, illegal, or unauthorized activities;
(g) introduce, transmit or use any virus, worm, trap door, back door, robot, spider, scraper, crawler, automatic process, unlawful or injurious materials, data-mining tool, or the like in connection with any Riverscape Property;
(h) circumvent or breach any security device or protection used by Riverscape or any Riverscape Property;
(i) access or use any Riverscape Property (i) for competitive analysis, (ii) for the development, use, or provision of any similar or competing websites, products, or services, or (iii) for any other purpose that is to our detriment or commercial disadvantage;
(j) impersonate or defame Riverscape or its employees, contractors, or users;
(k) access or use any Riverscape Property in any manner that infringes or violates any rights of any third party;
(l) remove, modify or obscure any copyright, patent, trademark or other proprietary or restrictive notices or markings relating to any Riverscape Property;
(m) use the Services for the benefit of any third party; or
(n) engage in any attempts to do any of the foregoing.
3.5 Customer Content. For any materials, files, content, data, settings, and information that you upload, input, submit, provide, make available, or cause to be available to us or in connection with the Services, including audio, video, images, and information of you, entities, and/or persons (“Customer Content”), you hereby grant Riverscape a non-exclusive, transferable, royalty-free, fully paid-up, perpetual, irrevocable, and sublicensable (for multiple tiers) license, throughout the world and the universe, to use, reproduce, capture, collect, record, perform, display, archive, store, maintain, index, monitor, review, edit, remove, delete, shorten, aggregate, provide, transmit, transfer, distribute, modify, and create derivative works of (a) the Customer Content for purposes in connection with the Services (e.g., facilitating, supporting or providing the Services), for purposes in connection with your use of the Services or related services, for purposes requested or authorized by you, or for purposes as provided by law, and (b) de-identified Customer Content for any and all purposes, including the purposes of improving, modifying, and creating products and services. We reserve the right, in our sole discretion without any obligation, to: (a) monitor and review your access to and use of the Services; (b) remove, edit, or decline to receive the Customer Content for any reason determined in our sole discretion (e.g., determined to impact our Services’ cost or performance, or determined to be inappropriate, unsuitable, or burdensome); and (c) provide information regarding any illegal or unauthorized use, and the entities and individuals allegedly involved in such use, to third parties that allege such illegal or unauthorized use and to legal authorities. You are responsible for properly setting up and using the Services and maintaining security and backup of the Customer Content.
4. Your Other Obligations, Acknowledgements, and Representations.
4.1 Cooperation. You will cooperate with us, and render all reasonable assistance requested by us, (a) to assist us in preventing and identifying any use of, or access to, the Services by you or your personnel, in actual or alleged violation of this Agreement, and (b) to enable us to exercise our rights and perform our obligations in connection with this Agreement.
4.2 Responsibilities. You are responsible for (a) any information, instructions, or materials provided by you or your personnel to the Services or us, (b) any results obtained from any use of the Services or the Riverscape Property, (c) any conclusions, decisions, or actions based on such use, and (d) acts and omissions of you and your personnel.
4.3 No Legal Assistance. You acknowledge and agree that (a) neither we nor the Services provide legal advice or legal assistance, (b) the Services and the results therefrom may involve documents, contracts, or provisions relating to legal issues, (c) you have consulted and/or will consult legal counsel of your own choosing for any legal advice or legal assistance, (d) while we provide the Services, we are not part of any agreements or contracts between you and any others, and (e) we are not liable in connection with any of the foregoing.
4.4 Electronic Communication. You acknowledge that we may send notices and other communications to you in electronic form (e.g., emails, text message notices and/or electronic postings on our website or in the Services). You consent to receive notices and other communications from us in electronic form. You agree that all notices and other communications (including disclosures, terms, conditions, changes, and agreements) that we provide to you electronically satisfy any legal requirements, including any requirements that such communications be in writing. You also consent to the use of electronic signatures.
4.5 Representations. You represent and warrant that:
(a) you have the full power, right, and authority to enter into this Agreement, and doing so will not violate any other agreement to which you are a party;
(b) your and your personnel’s use of and activities in connection with the Services and the Customer Content will be in compliance with this Agreement, our instructions, postings, notices, communications, and documentation, and all applicable laws, statutes, rules, and regulations;
(c) you have all the rights necessary to submit the Customer Content and the Feedback and to grant the rights to us as set forth herein;
(d) none of the Customer Content, the Feedback, or the exercise of any of the rights granted to us, does or will infringe or violate any intellectual property rights, proprietary rights, or other rights of a third party, including privacy and publicity rights;
(e) none of the Customer Content contains any unlawful content or promotes unlawful activities; and
(f) the Customer Content is, and will be promptly updated by you to remain, true, current, complete, and accurate.
5. Term and Termination.
5.1 Term. This Agreement will continue during your access to or use of the Services, subject to any cancellation, termination, or expiration. We may terminate, suspend, or restrict your account and/or your access and/or use of any or all of the Services with or without notice, immediately, without liability to you and third parties (a) at any time if we believe, in our sole discretion, that you are not in compliance with any part of this Agreement or you have created any risks to us or a third party or (b) as of the end of any subscription period for no reason or any reason. We reserve the right to suspend or terminate any Services at any time upon notice to you. Upon termination or ending of your account or your access to or use of the Services, this Agreement is terminated. This Agreement may expire at the end of any subscription period that is not renewed.
5.2 Events upon Termination. Upon any expiration or termination of this Agreement, you will immediately: (a) cease, and cause all your personnel to cease, all access and use of the Services and the Riverscape Property; (b) destroy, or return to us at our request, all copies of the Services and the Riverscape Property in your possession or control; and (c) certify to us that you have retained no copies of the same; and (d) pay all accrued Fees. Upon termination of an SOW, you will immediately pay all accrued Fees for the SOW. Upon any expiration or termination of this Agreement, all SOWs will terminate immediately.
6. Disclaimers of Warranties.
THE SERVICES AND THE RIVERSCAPE PROPERTY AND THE RESULTS THEREFROM (“PROPERTIES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. RIVERSCAPE SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
RIVERSCAPE DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS (A) REGARDING THE CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, QUALITY, AVAILABILITY, OR USE OF ANY OF THE PROPERTIES, (B) REGARDING THE RESULTS, DECISIONS, OR ACTIONS BASED ON ANY OF THE PROPERTIES, (C) THAT THE PROPERTIES WILL MEET YOUR REQUIREMENTS OR LEGAL REQUIREMENTS, OR (D) THAT THE USE OF THE PROPERTIES AND THE TRANSMISSION OF DATA WILL BE UNINTERRUPTED, SECURE, FREE FROM ANY VIRUS OR HARMFUL CODE, DEFECT-FREE, OR ERROR-FREE.
ALL THIRD-PARTY MATERIALS, SITES, SERVICES, AND ACTIVITIES AND THE RESULTS THEREFROM (“THIRD-PARTY PROPERTIES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ANY LIABILITY, REPRESENTATION, OR WARRANTY CONCERNING ANY THIRD-PARTY PROPERTIES IS STRICTLY BETWEEN YOU AND THE THIRD PARTY (INCLUDING ANY VENDOR AND ANY USER). YOU ASSUME ALL RISKS ASSOCIATED WITH ANY THIRD-PARTY PROPERTIES. YOU ASSUME ALL RISKS ASSOCIATED WITH MATTERS THAT ARE YOUR RESPONSIBILITIES, INCLUDING THE CUSTOMER CONTENT.
IF APPLICABLE LAW REQUIRES ANY WARRANTIES RELATING TO THE PROPERTIES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF FIRST USE. NO PERSON OR ENTITY CAN MAKE ANY EXPANSION, MODIFICATION, OR ADDITION TO THE LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT.
THE FOREGOING DOES NOT APPLY TO ANY WARRANTIES TO THE EXTENT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7. Limitation of Liability.
IN NO EVENT WILL ANY OF RIVERSCAPE, ITS RELATED OR AFFILIATED ENTITIES, CONTRACTORS, SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS (“RIVERSCAPE ENTITIES”), BE LIABLE TO YOU OR TO ANY PARTY, UNDER ANY LEGAL THEORY, (A) FOR ANY WARRANTIES, REPRESENTATIONS, LIABILITIES, RESPONSIBILITIES, SERVICES, RISKS, COSTS, OR ITEMS THAT HAVE BEEN DISCLAIMED, THAT ARE PROVIDED “AS IS,” OR THAT ARE ASSUMED BY YOU OR (B) FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, LOST BUSINESS, REVENUES OR PROFITS, LOSS OF GOODWILL, OR THIRD-PARTY CLAIMS.
IN NO EVENT WILL RIVERSCAPE ENTITIES’ AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU TO RIVERSCAPE FOR THE SERVICES HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WERE AN ESSENTIAL ELEMENT FOR THE TRANSACTION BETWEEN YOU AND RIVERSCAPE. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
THE FOREGOING DOES NOT APPLY TO ANY LIABILITY TO THE EXTENT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8. Indemnification and Release.
8.1 To the maximum extent of applicable law, you agree to defend, hold harmless, and indemnify the Riverscape Entities from and against any and all claims, demands, suits, judgments, awards, damages, liabilities, losses, costs, and expenses (including attorneys’ fees and costs) (“Losses”) in connection with or arising out of, whether in contract, tort, or otherwise, whether actual or alleged, (a) your use of or inability to use the Services; (b) your use of any documents or information obtained from the Services; (c) your misuse or unauthorized use of the Services; (d) any Customer Content; (e) your non-compliance of any terms hereunder; (f) your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations; and/or (g) your acts or omissions. In the foregoing, the term “your” includes employees, personnel, contractors, users, customers, and agents of you. Without Riverscape’s prior written consent, you agree not to enter into any settlement. Riverscape reserves the right to assume the exclusive defense and control of any of the foregoing matters, in which event you will fully cooperate with Riverscape in asserting any available defenses and pay for all Losses (including the fees and costs of the defense and any settlement).
8.2 To the maximum extent of applicable law, you hereby release and forever discharge the Riverscape Entities from any and all past, present, and future Losses in connection with or arising out of any Properties, any Third-Party Properties, any activities of any users, or any transactions between you and any third parties.
IF CALIFORNIA CIVIL CODE SECTION 1542 (“CODE”) IS APPLICABLE TO YOU, YOU HEREBY WAIVE THE CODE, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
9.1 Governing Law. Except to the extent provided otherwise by applicable law, this Agreement and the activities concerning any Properties will be governed by and construed in accordance with the laws of the State of Ohio without regard to the conflicts of laws provisions. The sole jurisdiction and venue for actions related to this Agreement and the activities concerning any Properties will be the federal courts and state courts located in Greene County or Montgomery County, Ohio (“County Location”) . Notwithstanding the foregoing, either party will at all times have the right to seek injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond). The UN Convention on Contracts for the International Sale of Goods does not apply.
9.2 Notices. You consent to receive all notices and communications electronically, such as via an email address or mobile phone number posted under your account or via electronic postings on our website or the Services. All notices to us must be provided to our email address at email@example.com, with a written copy to Riverscape Software, Inc., 2372 Lakeview Drive, Suite G, Beavercreek, Ohio 45431-2566; Attn: Legal (“Notice Addresses”).
9.3 Dispute Resolution. If you have any dispute with us, you must first give us an opportunity to resolve the dispute by sending a written description of your claim to us at our Notice Addresses (see Section 9.2). You and we both agree to negotiate your claim in good faith. If we are unable to resolve the claim within sixty (60) days after we acknowledge receipt of this claim description, you may pursue your claim in arbitration as described below.
9.4 Binding Arbitration. Each party agrees that, 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), except as provided below and to the extent permitted by law, any and all claims or disputes in any way related to or concerning the subject matter of this Agreement or any Properties, including any billing disputes, will be resolved by binding arbitration. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorneys’ fees).
(a) Arbitration. Any dispute to be resolved by binding arbitration shall be held by a single arbitrator, in the County Location (see Section 9.1) or another location mutually agreed, in accordance with the rules then in effect of the American Arbitration Association. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. Except as otherwise specified by applicable law, the prevailing party in any action or proceeding shall be entitled to costs and attorneys’ fees. All information relating to or disclosed by any party in connection with the arbitration of any disputes shall be treated as proprietary information and shall not be disclosed without prior written authorization of the disclosing party. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages.
YOU MAY OPT-OUT AND DECLINE THIS AGREEMENT TO ARBITRATE BY CONTACTING US AT OUR NOTICE ADDRESSES (SEE SECTION 9.2) WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST BECAME SUBJECT TO THIS ARBITRATION PROVISION, WHICH IS THE FIRST DATE YOU ACCEPTED THIS AGREEMENT.
(b) Class Action Waiver. YOU AND WE BOTH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF A COURT OR ARBITRATOR DETERMINES IN AN ACTION BETWEEN YOU AND US THAT THIS CLASS ACTION WAIVER IS UNENFORCEABLE, THE ARBITRATION AGREEMENT WILL BE VOID AS TO YOU.
(c) Jury Trial Waiver. IF A CLAIM PROCEEDS IN COURT, YOU AND WE BOTH WAIVE ANY RIGHT TO A JURY TRIAL.
(d) Injunctive Relief. You agree that any material breach by you of Sections 3 or 4 of this Agreement will result in irreparable harm to us and that damages would be an inadequate remedy. Therefore, in addition to our rights and remedies otherwise available at law, we will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if we seek such an injunction.
9.5 Reference and Promotions. You agree that we may reference you as our customer and use your trademarks and logos for such purpose without charge (e.g., display on our website). We may from time to time send you newsletters, promotional materials, and other communications and materials relating to us or the Services.
9.6 Assignment. You may not assign, transfer, delegate, or sublicense any obligations or benefit under this Agreement without our prior written consent. A change of control is deemed an assignment for the preceding sentence. We may assign and delegate any of our rights and obligations without your consent. This Agreement will be binding on and inure to the benefit of the respective successors and permitted assigns of the parties. Any attempted assignment in violation of this Agreement will be void and without effect.
9.7 Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, then, except as otherwise specified by applicable law, the prevailing party will be entitled to attorneys’ fees, costs, and disbursements, in addition to any other relief to which the party may be entitled.
9.8 Survival. All provisions of this Agreement that, by their nature should survive termination or expiration, will survive any termination or expiration, including Sections 2.1, 2.4 through 2.7, 3, 4, 5.2 and 6 through 9.
9.9 Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.
9.10 Severability. In the event that any provision of this Agreement is determined to be illegal, invalid, or unenforceable, such provision will be construed to reflect the original intent of the parties as closely as possible and to the extent possible, and the remaining provisions will remain in full force and effect and enforceable.
9.11 Headings and Construction. Headings are for convenience only and do not, in any way, affect interpretation of this Agreement. The words “include” and “including,” and variations thereof, are deemed to be followed by the word “without limitation.”
9.12 Force Majeure. A party will not be liable for nonperformance or delay in performance (other than of payment obligations) caused by any event beyond the control of such party, including wars, hostilities, revolutions, riots, civil commotion, national emergency, strikes, lockouts, shortage of materials, supplies, labor, fuel, transportation, or power, the other party’s breach, pandemics, epidemics, fires, floods, earthquakes, forces of nature, explosions, embargoes, any acts of God, internet, electric power, or communications outage, or any law, proclamation, regulation, ordinance of any court, government, or governmental body.
9.13 Printed Form. A printed version of this Agreement and of any notices given in electronic form shall be admissible in proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.