BY ACCEPTING OR ACKNOWLEDGING THE REVEGY ORDER FORM OR BY USING THE SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERNING YOUR USE OF REVEGY’S ONLINE SOFTWARE SERVICE, INCLUDING OFFLINE COMPONENTS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “SUBSCRIBER”, “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
Subject to the terms of this Agreement, Revegy, Inc. (“Revegy”) will provide you with use of the Service, including a browser interface and data encrypted, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Revegy website incorporated by reference herein, including but not limited to Revegy’s privacy and security policies.
As used in this Agreement and in any Order Forms, the following terms will have the following meanings:
“Content” means the audio and visual information, documents, software, products and services contained or made available to Subscriber in the course of using the Service;
“Customer Data” means any data, information or material provided or submitted by Subscriber to the Service in the course of using the Service;
“Initial Term” means the initial period indicated on the applicable Order Form;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“License” means the type of license to access and use the Service as indicated on the applicable Order Form(s);
“License Administrator(s)” means those Users designated by Subscriber who create User accounts and otherwise administer Subscriber’s access and use of the Service;
“Order Form(s)” means the Revegy form evidencing the initial subscription for the Service and any subsequent order forms mutually executed by the parties, specifying, among other things, the type of Licenses and other Services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties. Each such Order Form will be governed by the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail unless the Order Form expressly supersedes the applicable portions of this Agreement. Each Order Form constitutes an independent legal obligation between the parties;
“Professional Services” means any consulting or professional services specified in the relevant SOW;
“Renewal Term(s)” means successive terms following the Initial Term, or any Renewal Term, as applicable, equal in length to the Initial Term;
“Revegy Technology” means all of Revegy’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Subscriber by Revegy in providing the Service;
“Sensitive Personal Data” means any personal data pertaining to the data subject’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation, Social Security number (or the equivalent (if any) for countries outside of the United States), individual taxpayer identification number, driver’s license number, passport number or any other government-issued identification number; financial data; account number (including any credit card number, debit card number, or other financial account number, as well as any other customer account number) or medical or health information or records.
“Service(s)” means the specific edition of Revegy’s online Sales Effectiveness Solution(s) identified in the applicable Order Form and maintained by Revegy, accessible via https://www.revegy.com or another designated web site or IP address, or ancillary online or offline products and services provided to Subscriber by Revegy, to which Subscriber is being granted access under this Agreement, including the Revegy Technology and the Content, together with the applicable Support Services and any Professional Services specified in the relevant Order Form(s);
“Statement of Work” or “SOW” means the Revegy form detailing the Professional Services that Revegy will perform for Subscriber. Each such SOW will be governed by the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any SOW, the terms of the SOW will prevail;
“Support Services” means technical support and maintenance services for the Service pursuant to Revegy’s then-current Support Services policy. The current Support Services policy is set forth in Exhibit B to this Agreement.
“Subscription Term(s)” means the Initial Term and any Renewal Term(s), if applicable; and
“User(s)” means Subscriber’s employees, representatives, consultants, contractors or agents who are authorized to use the Service, for whom subscriptions to the Service has been purchased by Subscriber, and have been supplied user identifications and passwords by Subscriber (or by Revegy at Subscriber’s request).
2. Provision of Service(s).
Subject to the terms of this Agreement and the applicable Order Form(s) during any Subscription Term, Revegy will provide Subscriber and its Users with access and use of the Service during the Subscription Term(s), including a browser interface and data encrypted, transmission, access and storage. Subscriber’s registration for, or use and access of, the Service shall be deemed to be Subscriber’s agreement to abide by this Agreement including any materials available on the Revegy website incorporated by reference herein, including, but not limited to, Revegy’s privacy and security policies.
3. Privacy & Security; Disclosure.
Revegy’s privacy and security policies may be viewed at http://www2.revegy.com/customer-security-policy. Revegy reserves the right to modify its privacy and security policies in its reasonable discretion from time to time, provided that Revegy will not reduce the protection level of the privacy and security policies. Because the Service is a hosted, online application, Revegy occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If Subscriber is a paying customer of the Service, Subscriber agrees that Revegy can disclose the fact that Subscriber is a paying customer and the edition of the Service that Subscriber is using.
4. License Grant & Restrictions
Revegy hereby grants Subscriber a non-exclusive, non-transferable, worldwide right to access and use the Service, solely for Subscriber’s own internal business purposes, subject to the terms and conditions of this Agreement and the type License indicated in the applicable Order Form(s). All rights not expressly granted to Subscriber are reserved by Revegy and its licensors.
Subscriber is not authorized to access, and Subscriber may not access, the Service if Subscriber is a competitor of Revegy, except with Revegy’s prior written consent. In addition, Subscriber may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Except as otherwise expressly set forth in this Agreement, Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way, provided that Subscriber may share Content with clients of Subscriber; provided that such clients may not directly access the Revegy Technology; (ii) modify or make derivative works based upon the Service or the Content; (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User Licenses cannot be shared or used by more than one individual User, but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (ix) attempt to gain unauthorized access to the Service or its related systems or networks.
5. Subscriber’s Responsibilities.
Subscriber is responsible for all activity occurring under Subscriber’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Subscriber shall: (i) notify Revegy immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Revegy immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber or Subscriber’s Users; and (iii) not impersonate another Revegy user or provide false identity information to gain access to or use the Service.
6. Revegy’s Responsibilities
During the applicable Subscription Term, Revegy will (i) provide Support Services at no additional cost, (ii) make the Services available to Subscriber in accordance with the terms of this Agreement, and (iii) perform the Services in accordance with applicable laws and regulations.
7. Account Information and Data
As between the parties, Subscriber exclusively owns all rights, title and interest in and to all Customer Data. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Revegy shall not access Subscriber’s User accounts, including Customer Data, except to respond to service or technical problems or at Subscriber’s request. In the event this Agreement or any Order Form is terminated, Revegy will make available to Subscriber a file of the Customer Data within 30 days of termination of the Agreement or the Order Form, as applicable, if Subscriber so requests within 30 days of the time of such termination, provided Subscriber agrees to pay any consulting fees relating to the creation of the Customer Data file. Subscriber agrees and acknowledges that Revegy may delete such Customer Data, 30 days after termination. Upon termination of this Agreement, Subscriber’s right to access or use Customer Data in the Service will immediately terminate. The parties acknowledge that Revegy will not process and Revegy’s systems and the Services are not designed to host, process or store any Sensitive Personal Data. In no event will Subscriber or any Subscriber User transfer or submit any Sensitive Personal Data to Revegy or any Sensitive Personal Data into Revegy’s systems or into the Services.
8. Intellectual Property Ownership
Revegy (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Revegy Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Service. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Service, the Revegy Technology or the Intellectual Property Rights owned by Revegy. The Revegy name, the Revegy logo, and the product names associated with the Service are trademarks of Revegy or third parties, and no right or license is granted to use them.
9. Charges and Payment of Fees; Ordering and Invoicing
a. Charges and Payment of Fees. Subscriber shall pay all fees or charges to Subscriber’s account in accordance with the fees, charges, and billing terms set forth in this Agreement and the applicable Order Form or SOW, as applicable. Unless otherwise set forth herein or in the applicable Order Form or SOW, all fees are payable in U.S. Dollars Subscriber also agrees to reimburse Revegy for all travel related expenses (without markup) reasonably incurred in performing the Professional Services. Except as expressly set forth herein or in the applicable Order Form, payment obligations are non-cancelable and all amounts paid are nonrefundable.
b. Billing Procedures and Compensation. Subscriber agrees to pay Revegy for the Services during the Subscription Term in accordance with the rates set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form or SOW, payment shall be due 30 days from receipt of invoice for fees and expenses reimbursable under Section 9.a. After the Initial Term, Revegy reserves the right to increase its fees for the upcoming Renewal Term upon at least 60 days prior written or emailed notice to Subscriber.
c. Each Order Form will automatically renew at the end of the Initial Term (and thereafter) for additional Renewal Terms unless terminated by either party by at least 30 days written notice prior to the end of the then-current term. Revegy will invoice Subscriber annually in advance unless otherwise set forth in the applicable Order Form. Fees for other Professional Services will be charged on an as-quoted basis. Revegy’s fees are exclusive of all taxes, levies, withholdings or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, withholdings or duties, excluding taxes based on Revegy’s income.
d. Subscriber agrees to provide Revegy with complete and accurate billing and contact information. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Subscriber agrees to update this information within 30 days of any change to it.
10. Term and Termination
a. Term. This Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated as set forth below. Each Order Form will have its own term as specified therein.
b. Termination for Cause. This Agreement and all Order Form(s) may be terminated for cause as follows: (i) by either party upon 30 days written notice if the other party is in breach of any material provision of this Agreement (including non-payment of fees), unless such material breach is cured before the end of such 30 day period, and (iii) immediately by Revegy for any violation by Subscriber of Revegy’s Intellectual Property Rights.
c. Termination if No Orders are in Effect. This Agreement may be terminated coterminous with the expiration or termination of an Order Form if no other Order Forms are then in effect.
d. Effect of Termination. Upon any expiration or termination of this Agreement, (i) all rights and License granted to Subscriber under the affected Order(s) shall immediately terminate, and (ii) any rights to payment, any right of action for breach of the Agreement prior to termination shall survive, together with all other provisions of this Agreement concerning the ongoing interests of the parties. If Revegy terminates an Order Form for a material breach by you, then all payment obligations under the affected Order Form(s) will accelerate and become immediately due and payable.
11. Non-Payment and Suspension
In addition to any other rights granted to Revegy herein, Revegy reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent (falls into arrears 30 days or more). Revegy reserves the right to impose a reconnection fee in the event Subscriber are suspended and thereafter request access to the Service.
12. Confidential Information
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) 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. The Receiving Party will, during the term of this Agreement, and for two years thereafter maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party: (i) will not reproduce Confidential Information disclosed by the Disclosing Party, in any form, except as required to accomplish the Receiving Party’s obligations under this Agreement; and (ii) will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or consultants have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Revegy represents and warrants that (i) it will provide the Service consistent with applicable industry standards; (ii) the Service will perform materially in accordance with the online Revegy help documentation under normal use and circumstances (“Documentation”); and (iii) as provided by Revegy, the Service will not contain any Malicious Code. “Malicious Code” means any software, electronic, mechanical or other means, device or function , e.g. (key node, lock, time-out, “back door,” “virus,” “trapdoor,” “booby trap,” “drop dead device,” “data scrambling device,” “Trojan Horse,”) that (i) allows Revegy or a third party to manipulate or gain unauthorized access to any Customer system, (ii) contains any files or features that will disable or destroy any Customer data, or (iii) replicates, transmits or activates itself without control of a person operating the computing equipment on which it resides. Subscriber represents and warrants that Subscriber has not falsely identified itself nor provided any false information to gain access to the Service and that Subscriber’s billing information is correct.
Subscriber shall indemnify and hold Revegy, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the Intellectual Property Rights of a third party; or (ii) a claim based on any misuse of the Service by Subscriber.
Revegy shall defend Subscriber or settle at its expense any claim or suit (an “Action”) against Subscriber, arising out of or in connection with an assertion that the Service or the use thereof as specifically authorized by Revegy, infringes any U.S. patent in existence as of the Effective Date, U.S. copyright or trademark rights or misappropriates a trade secret of any third party; provided that Revegy shall have no obligation under this Section to the extent any claim of infringement or misappropriation results from (i) use of the Services in combination with any other hardware or software supplied by any third person or entity other than Revegy; (ii) any alteration or modification of the Services not provided Revegy; or (iii) use of the Services in a way not intended by Revegy or not provided for or described in the applicable documentation, if such infringement would not have occurred but for such combination, alteration, modification or unintended or unauthorized use of the Services.
Should Services become, or in Revegy’s opinion be likely to become, the subject of an Action, Revegy may, at its discretion, (i) obtain for Subscriber, at no additional cost, the right to continue using the Services under this Agreement; (ii) modify or replace the Services to avoid such claim, or (iii) if Revegy determines that neither (i) or (ii) is commercially practicable, terminate the license to the Services and refund the pre-paid, unused fees to Subscriber. THIS SECTION STATES REVEGY’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIMED, POTENTIAL OR ACTUAL INFRINGEMENT OR FOR ANY ACTION.
As an express condition to the foregoing indemnity obligations, the party seeking indemnity shall (i) promptly notify the indenifying party in writing of any such actual or threatened loss, suit, claim, liability, expense or proceeding, (ii) allow the indemnifying party, at its own expense, to direct the defense of such suit, claim or proceeding, (iii) give the indemnifying party all information and assistance the indemnifying party considers reasonably useful to defend such suit, claim or proceeding, and (iv) not enter into any settlement of any such suit, claim or proceeding without the indemnifying party’s written consent.
15. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
16. Limitation of Liability
EXCLUDING ANY VIOLATIONS OF REVEGY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL DAMAGES, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 12 OF THIS AGREEMENT AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE ORDER GIVING OR SOW RISE TO THE CLAIM IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
NOTHING HEREIN WILL SERVE TO LIMIT CUSTOMER’S OBLIGATION TO PAY FEES PROPERLY DUE AND PAYABLE UNDER THIS AGREEMENT.
17. Compliance with Local Laws and Export Control Laws
Each party shall comply with applicable laws in providing and using the Services. The Service uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies, as well as the export control regulations of other countries. Each party agrees to comply with all such laws and regulations.
Revegy and its licensors make no representation that the Service is appropriate or available for use in other locations. Each party shall comply with all applicable laws, including without limitation, export and import regulations of other countries. Any diversion of the Content contrary to United States law or other applicable law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or other appropriate governmental authority for such purposes.
Revegy may give notice by means of a general notice on the Service, electronic mail to Subscriber’s e-mail address on record in Revegy’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in Revegy’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post). Subscriber may give notice to Revegy (such notice shall be deemed given when received by Revegy) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Revegy, Inc., 300 Galleria Parkway, Suite 1850, Atlanta, GA 30339.
19. Assignment; Change in Control
This Agreement may not be assigned by either party without the prior written approval of the other. Notwithstanding, either party may assign this Agreement without consent upon the sale of all or substantially all its assets, merger or reorganization, subject to the limitations on use set forth in the applicable Order Form.
This Agreement shall be governed by the laws of the State of Georgia (U.S.) law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Subscriber and Revegy as a result of this Agreement or use of the Service. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to causes beyond the reasonable control of the party including but not limited to Internet outages or delays, strikes, blockade, war, riots, natural disasters or acts of God. There are no third-party beneficiaries to this Agreement. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing. Except as otherwise expressly provided herein, (i) any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the party against whom such modification or waiver will be enforced, and (ii) this Agreement many only be amended in a writing signed by both parties. This Agreement, all Order Forms and any Revegy policies incorporated herein comprise the entire agreement between Subscriber and Revegy regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. Without limiting the foregoing, any terms contained in Subscriber’s purchase orders or other similar documents are deemed to be for administrative convenience only and do not modify the terms of this Agreement. The terms of any such documents are deemed rejected by Revegy. Upon termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect.