Terms of Service
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THE FOLLOWING TERMS OF SERVICE (THE “AGREEMENT”) APPLY TO YOUR USE OF THE SaaSKarma SERVICES (THE “SERVICES”) PROVIDED TO YOU BY RAW ENGINEERING LLC (“RAW ENGINEERING”). USE OF OR ACCESS TO THE SERVICES IS SUBJECT TO YOUR, AND THE ENTITY YOU REPRESENT (TOGETHER, THE “CUSTOMER”)’S COMPLIANCE WITH THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON AND COMPLETING THE REGISTRATION PROCESS YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH RAW ENGINEERING; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT ACCESS THE PRODUCTS AND SERVICES PROVIDED BY RAW ENGINEERING.
THE SERVICES ARE INTENDED FOR BUSINESS, COMMERCIAL, OR ORGANIZATIONAL USE AND ARE NOT INTENDED FOR USE BY CONSUMERS.
IF CUSTOMER SUBSCRIBES TO THE SERVICES FOR AN INITIAL SUBSCRIPTION TERM (AS DEFINED BELOW), THEN THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AT RAW ENGINEERING’S THEN-CURRENT FEE FOR THE SERVICES UNLESS CUSTOMER OPTS OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 4.1 BELOW.
- Provision of Services. Raw Engineering will provide Customer with the Services selected by Customer via Raw Engineering’s online purchase process. The Services are provided on a subscription basis for the term Customer selects upon registration (“Subscription Term”). The Services are for Customer’s own internal business, commercial or organizational use in accordance with the terms and conditions of this Agreement, the Raw Engineering Acceptable Use Policy set forth [URL]), the online documentation associated with the Services (currently located at [URL])(“Documentation”) (collectively, the “Permitted Use”). Customer shall make no use of the Services beyond the Permitted Use.
- Permitted Users. Customer is responsible for determining those persons permitted to access and use the Services and Customer’s Services accounts, which may include Customer’s and its Affiliates’ employees, agents and consultants (“Permitted Users”). Customer may permit its Permitted Users to access and use the features and functions of the Services in accordance with the terms of this Agreement. If applicable, the number of Permitted Users may be limited as specified in Customer’s account.
- Beta Services; Free Trials. From time to time, Raw Engineering may, but is not obligated to, offer Customer certain products, services or features that are made available on a trial, evaluation, beta, early access or similar basis (“Beta Services”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) use of any Beta Services shall be at Customer’s sole discretion; (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality of the Beta Services; (c) Beta Services may not be available or reliable; (d) Beta Services may not be subject to the same security or audits as the Services; and (e) Raw Engineering provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services. In addition, from time to time, Raw Engineering may, but is not obligated to, offer access to the Services free of charge for a limited period of time (“Free Trials”). Free Trials are provided “as-is” without warranty of any kind. Raw Engineering will have no liability arising out of or in connection with a Free Trial. If Customer is a consumer for the purposes of applicable law and has its habitual residence in the United Kingdom or the European Economic Area, the foregoing is without prejudice to mandatory consumer rights and statutory warranties.
- Open Source Software. Certain items of software may be provided to Customer with the Services that are subject to “open source” or “free software” licenses (“Open Source Software”). Each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
- Customer Data. “Customer Data” means all information, data, and other content, in any form or media, that is submitted or otherwise transmitted by or on behalf of Customer via the Services, as well as any reports or analysis related thereto and made available to Customer during the course of Customer’s use of the Services. Customer Data does not include Account Information as defined in Section 1.5 or Usage Data as defined in Section 3.3.
- Data Security. During the Subscription Term, Raw Engineering shall implement and maintain an information security program that incorporates administrative, technical and physical safeguards designed to: (a) ensure the security and integrity of the Customer Data and Account Information; (b) prevent unauthorized access to, or disclosure of, the Customer Data and Account Information; and (c) protect against threats, hazards and security incidents with respect to the Customer Data and Account Information, in each case, solely to the extent that Raw Engineering hosts such Customer Data or Account Information.
- Access to SaaS Services. Raw Engineering grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 10.2), revocable right and license during the Subscription Term: (a) to access and use the Services for the Permitted Use; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support the Permitted Use.
- Permitted User Access. If Customer is given passwords, or the ability to create passwords, to access Services on Raw Engineering’s systems, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will ensure its Permitted Users comply with this Agreement and is responsible for any and all actions taken using Customer’s accounts and passwords or in Customer’s own trusted environment. Customer shall notify Raw Engineering as soon as reasonably practicable of any unauthorized use of any User ID, password or account or any other known or suspected breach of security.
- General Restrictions. Customer will not, and will not allow any Permitted User or third party to: (a) modify, adapt, alter, translate or create derivative works of the Services; (b) rent, lease, loan, copy, provide access to or sublicense any Services to a third party; (c) use any Services to provide, or incorporate any Services into, any product or service provided to a third party, such as in a service bureau or time-sharing arrangement; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services (notwithstanding the foregoing, decompiling software is permitted solely to the extent the laws of Customer’s jurisdiction give Customer the right to do so for obtaining information necessary to render the software interoperable with other software; provided, however, that Customer must first request such information from Raw Engineering and Raw Engineering may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the software); (e) remove or obscure any proprietary or other notices contained in any Services (including in any reports or data printed from the Services); (f) send or store in or via the Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;(g) send or store in or via the Services or include within the Customer Data (as defined in Section 1.6) any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (i) interfere with or disrupt the Services or the hardware or network used to operate the Services or access the Services through an unapproved interface; or (j) otherwise use the Services in any manner that exceeds the grant of rights permitted under Section 2.1 or in a manner inconsistent with applicable law. For clarity, the foregoing restrictions will also apply to the Documentation provided by Raw Engineering to Customer.
- Raw Engineering Technology. Customer acknowledges that no Intellectual Property Rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to the Services, irrespective of any use of the words “purchase”, “sale” or like terms hereunder. Customer agrees that Raw Engineering, its licensors, and its suppliers retain all right, title, and interest (including all Intellectual Property Rights) in and to the Raw Engineering Technology (as defined below) or any work product produced by Raw Engineering or its suppliers hereunder. For the purposes of this Agreement: (a) “Intellectual Property Rights” means all of the following in any jurisdiction throughout the world and all rights therein: (i) patents and applications therefor and all other rights corresponding thereto; (ii) trade-secret rights and all other rights in confidential business or technical information; (iii) copyrights, copyrights registrations and applications therefor, moral rights, and all other rights corresponding thereto; (iv) domain names, uniform resource locators, other names and locators associated with the Internet, and applications or registrations therefor; (v) trade names, logos, common law trademarks and service marks and trademark and service mark registrations, all related goodwill related thereto, and applications therefor; (vi) all rights in databases and data collections; and (vii) any similar or equivalent rights recognized in any jurisdiction in the world to any of the foregoing; and (b) “Raw Engineering Technology” means the, Documentation, and any and all related and underlying technology and work product developed by, or on behalf of, Raw Engineering and its licensors and suppliers.
- Feedback. In the event Customer provides Raw Engineering with any suggestions, ideas, improvements or other feedback with respect to any aspect of any of the foregoing (“Feedback”), Customer shall and hereby does grant Raw Engineering (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable (through multiple tiers), transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose.
- Data Rights. As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data. In connection with providing the Services, Customer acknowledges that Raw Engineering may (to the extent permitted by applicable law) create or collect certain aggregated and anonymized technical and analytical information pertaining to Customer’s use of the Services or information pertaining to the performance of the Services in Customer’s environment (“Usage Data”) and may use such Usage Data for the purposes listed in (i) – (iii) below. Customer grants Raw Engineering a limited, non-exclusive, worldwide, royalty-free license: (a) during the Subscription Term, to download, store, process and use the Customer Data as necessary for purposes of providing and improving the Services; and (b) on a perpetual and irrevocable basis, to use the Customer Data in an aggregated and anonymized form only, together with the Usage Data, to: (i) improve the Services (including through various machine learning exercises); (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services.
- Subscription Term and Automatic Renewal. Unless otherwise terminated as set forth below, Customer’s initial Subscription Term shall be as determined by Customer from those options made available to Customer during sign-up. After the conclusion of the initial Subscription Term, Customer’s Subscription Term will automatically renew for successive renewal terms of equal length to the initial Subscription Term, at Raw Engineering’s then-current fees for such Service, unless Customer provides Raw Engineering with at least: (a) thirty (30) days’ notice of non-renewal in the case of an annual subscription; and (b) ten (10) days’ notice of non-renewal in the case of a monthly subscription. By subscribing to the Services, Customer authorizes Raw Engineering to charge Customer the fees for the initial Subscription Term, and again at the beginning of any subsequent Subscription Term. Customer may cancel via the account administration tools provided within the Services. If Customer cancels its subscription, Customer may continue to use the Services until the end of Customer’s then-current Subscription Term and Customer’s subscription will not be renewed after Customer’s then-current Subscription Term expires. However, Customer will not be eligible for a prorated refund of any portion of the fees paid for the then-current Subscription Term.
- Fees and Payment. All fees are payable by Customer at the time of purchase (or on the date of renewal of the Subscription Term, as applicable). Except as expressly set forth in Sections 6.1 and 8/2, all fees are non-refundable. All fees must be paid in US dollars.
- Adjustment of Fees. Raw Engineering may adjust the fees charged to Customer hereunder on notice (electronic notice is sufficient) delivered to Customer in advance (with such adjustment to take effect beginning on the next Subscription Term).
- Taxes. Unless taxes are expressly included, the payments required under this Agreement are exclusive of any sales, use or value added tax and any other equivalent tax (“Sales Tax”) that may be due in connection with the services provided under this Agreement. If Raw Engineering determines it has a legal obligation to collect a Sales Tax from Customer in connection with this Agreement, Raw Engineering shall collect such Sales Tax in addition to the payments required under this Agreement. If payments for any Services under the Agreement are subject to any Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to Raw Engineering, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify Raw Engineering for any liability or expense Raw Engineering may incur in connection with such Sales Taxes. Customer agrees to make all payments of fees to Raw Engineering free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Raw Engineering will be Customer’s sole responsibility, and Customer will provide Raw Engineering with official receipts issued by the appropriate taxing authority, or such other evidence as Raw Engineering may reasonably request, to establish that such taxes have been paid.
- Suspension of Service. If Customer's account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Raw Engineering reserves the right to, with or without notice, suspend Customer’s access to the applicable Services without liability to Customer until such amounts are paid in full.
- Free Trials. Any Free Trial that provides access to the Services must be used within the specified time of the Free Trial. At the end of the Free Trial period, Customer’s use of that Service will expire, and any further use of the applicable Service is prohibited unless Customer pays the then-applicable subscription fee. Customer may be required to enter payment information to sign up for a Free Trial but will not be charged by Raw Engineering until the Free Trial has expired.
- Termination. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment or in the event Customer breaches any license or use restrictions) (provided that, in the event of Customer’s notice of breach with respect to the Services, such notice must: (i) be sufficiently detailed for Raw Engineering to verify and remedy the issue; and (ii) expressly state the intent to terminate); (b) ceases operation without a successor; or (c) insofar as permitted under applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and such proceeding is not dismissed within sixty (60) days thereafter). With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer is sufficient hereunder. This provision is without prejudice to any additional rights of termination afforded to either party pursuant to applicable law.
- Effect of Termination. Upon any expiration or termination of this Agreement: (a) all licenses will immediately terminate and Customer shall immediately cease any and all use of and access to the Services (including any and all related Raw Engineering Technology); (b) any unpaid amounts owing to Raw Engineering will become immediately due and payable; and (c) each party will return to the other party or, at the disclosing party’s election, destroy such other party’s Confidential Information. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
- Data Storage and Wind Down. Raw Engineering LLC does not provide a data/content archiving service. Raw Engineering LLC agrees only that it shall not intentionally delete any Customer Data which is less than thirty (30) days old. During the thirty (30) days period immediately following termination of this Agreement, If Customer requires access to the Customer Data, Customer is to contact Raw Engineering by emailing at [email protected]. Customer Data not retrieved within thirty (30) days may be deleted by Raw Engineering in its discretion. Any additional transition assistance activities will be at Raw Engineering’s discretion and may be subject to its then-current rates. Survival. The following Sections shall survive any expiration or termination of this Agreement: ____________.
- Limited Warranty. The Services are sold for business, commercial or organizational use only and are not intended for use by consumers. Accordingly, except as otherwise set forth in this Agreement, Raw Engineering disclaims all implied warranties, including consumer warranties, under all applicable law. Raw Engineering warrants, for Customer’s benefit only, that it will use commercially reasonable efforts to ensure that the Services will operate in conformity in all material respects with the applicable Documentation. Raw Engineering does not warrant that Customer’s use of the Services will be uninterrupted or error-free, nor does Raw Engineering warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Raw Engineering’ sole liability, and Customer’s sole and exclusive remedy, for any breach of this limited warranty shall be, in Raw Engineering’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or workaround that corrects or otherwise remedies the reported non-conformity, or if Raw Engineering determines such remedy to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any prepaid but unused fees, as calculated on a pro rata basis. The limited warranty set forth in this Section 6.1 shall not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; or (b) if the error was caused by misuse, unauthorized modifications by Customer (or any third party acting on its behalf), or third-party hardware, software or services not provided by Raw Engineering; or (c) Services provided on a no-charge or evaluation basis, including the Beta Services.
- Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT (INCLUDING PURSUANT TO THE LIMITED WARRANTY IN SECTION 6.1), AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”. NEITHER RAW ENGINEERING NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. RAW ENGINEERING WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF RAW ENGINEERING. CUSTOMER AGREES THAT IT HAS NOT RELIED ON THE AVAILABILITY OF ANY FUTURE FUNCTIONALITY OF THE SERVICES OR ANY OTHER FUTURE PRODUCT OR SERVICE IN EXECUTING THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT INFORMATION PROVIDED BY RAW ENGINEERING REGARDING FUTURE FUNCTIONALITY SHOULD NOT BE RELIED ON TO MAKE A PURCHASE DECISION. IF CUSTOMER IS A CONSUMER FOR THE PURPOSES OF APPLICABLE LAW AND HAS ITS HABITUAL RESIDENCE IN THE UNITED KINGDOM OR THE EUROPEAN ECONOMIC AREA, THIS PROVISION IS WITHOUT PREJUDICE TO MANDATORY CONSUMER RIGHTS AND STATUTORY WARRANTIES.
7. LIMITATION ON LIABILITY.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE SET FORTH HEREIN: (A) NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SUCH PARTY IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; (B) THE AGGREGATE LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (I) THE FEES PAID BY CUSTOMER TO RAW ENGINEERING DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, OR THE CUSTOMER HAS ACQUIRED BETA SERVICES OR SERVICES ON A FREE TRIAL, SUCH AMOUNT SHALL BE US$500.00); AND (II) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; AND (C) RAW ENGINEERING SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR ANY LOSS OF CUSTOMER DATA. IN ADDITION, RAW ENGINEERING SHALL HAVE NO LIABILITY FOR MATTERS OUTSIDE OF ITS REASONABLE CONTROL (SUCH AS ISP OUTAGES). RAW ENGINEERING DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR: (X) DEATH OR PERSONAL INJURY CAUSED BY RAW ENGINEERING’ NEGLIGENCE; (Y) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (Z) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
- THIS SECTION 7.1 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 9, CUSTOMER’S BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICES.
- IF CUSTOMER IS A CONSUMER UNDER APPLICABLE LAW AND HAS ITS HABITUAL RESIDENCE IN THE UNITED KINGDOM OR THE EUROPEAN ECONOMIC AREA, APPLICABLE CONSUMER LAWS MAY NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 7, AND SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
- The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- By Customer. Except as otherwise provided herein, Customer shall indemnify, defend and hold harmless Raw Engineering from and against all third party and governmental actions, claims and all resulting, to the extent payable out-of-pocket to unaffiliated third parties: damages, liabilities, fines, penalties, costs and expenses, including all reasonable attorneys’ fees) (“Losses”) arising out of or relating to: [TO BE DISCUSSED].
- By Raw Engineering. Raw Engineering shall indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, copyright, or trademark asserted against Customer by a third party based upon Customer’s use of the Services in accordance with the terms of this Agreement; provided that, Raw Engineering receives from Customer: (i) prompt written notice of such third party claim (but in any event, notice in sufficient time for Raw Engineering to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) reasonable cooperation of Customer. If Customer’s use of any Services is, or in Raw Engineering’ opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Raw Engineering may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Services; or (c) terminate the Agreement and refund to Customer the fees it pre-paid for use of the applicable Services for the unexpired remainder of the then-current Subscription Term. The foregoing indemnification obligation of Raw Engineering shall not apply: (1) if any of the Services are modified by any party other than Raw Engineering, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other non-Raw Engineering services or processes not authorized by Raw Engineering, but solely to the extent the alleged infringement is caused by such combination; (3) to any Services that are being misused; or (4) any claim arising as a result of Customer Data or any third-party deliverables or components contained within the Services. EXCEPT AS OTHERWISE SET FORTH HEREIN, THIS SECTION 8.2 SETS FORTH RAW ENGINEERING’ SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. THIS SECTION 8.2 WILL NOT APPLY TO ANY BETA SERVICES OR SERVICES PROVIDED FREE OF CHARGE.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Raw Engineering Technology will be deemed Confidential Information of Raw Engineering without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence (using reasonable methods or protection) and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can reasonably evidence: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become generally available to the public through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
- Electronic Communications. The communications between Customer and Raw Engineering may take place via electronic means, whether Customer sends Raw Engineering e-mails, or whether Raw Engineering posts notices within the Services or communicates with Customer via e-mail. For contractual purposes, Customer: (a) consents to receive communications from Raw Engineering in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Raw Engineering provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
- Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
- Governing Law; Venue. This Agreement will be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. If Customer is a consumer under applicable law and has its habitual residence in the United Kingdom or the European Economic Area: (i) Customer may benefit from additional rights and protection afforded to it by mandatory provisions of the laws of its country of residence, and nothing in this Agreement shall affect the enforceability of these additional rights and protection; and (ii) Customer may bring a claim to enforce such additional rights and protection in its country of residence.
- Publicity. Customer agrees that Raw Engineering may use Customer’s name and logo on Raw Engineering’ website and in Raw Engineering promotional materials (e.g., presentations, ads, data sheets, and press releases) or as part of a general list of customers.
- Export Laws. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services. Customer agrees that it will not export or re-export the Services in any form in violation of the export or import laws of the United States or any foreign jurisdiction.
- Government Customers. If Customer is a branch or agency of the United States Government, the following provision applies. The Services, Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
- Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (a) if to Customer, the address listed by Customer during the Services registration process (or as otherwise later changed by Customer in its Raw Engineering’ account); and (b) if to Raw Engineering, 49 Geary Street, Suite 238, San Francisco, CA 94108, Attn: Legal (or at such other address as may be given by Raw Engineering at any time) and shall be deemed to have been received by the addressee; (c) if given by hand, immediately upon receipt; (d) if given by overnight courier service, the first business day following dispatch; or (e) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Raw Engineering (such as for breach) must also be provided in email to: [email protected] (subject heading: Attn: Legal Notice) (but notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer is sufficient to the extent expressly stated in this Agreement. Electronic notices may be delivered via email or to the Customer’s Raw Engineering’ Services account.
- Updates to this Agreement; Waivers. Raw Engineering may supplement, amend, or otherwise modify this Agreement at any time, by providing Customer with at least forty-five (45) days’ notice thereof (electronic notice is sufficient) and such changes will go into effect at the beginning of the next Subscription Term. Except as set forth in the preceding sentence, no supplement, amendment, or modification of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
- Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No terms, provisions or conditions of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, nor have any effect on the rights, duties or obligations other parties hereunder or otherwise modify this Agreement and any such document relating to this Agreement will be for administrative purposes only and will and will have no legal effect, regardless of whether either party executes such document or fails to object to such terms, provisions or conditions.
- Force Majeure. Except with respect to Customer’s payment obligations, neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, epidemic/pandemic, governmental shutdown, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
- Subcontractors. Raw Engineering may use the services of subcontractors for performance of services under this Agreement, provided that Raw Engineering remains responsible for: (a) compliance of any such subcontractor with the terms of this Agreement; and (b) for the overall performance of the Services as required under this Agreement.
- Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- Rights of Third Parties. This Agreement is between Raw Engineering and Customer. No other person shall have any rights or obligations pursuant to this Agreement, including the right to enforce any of its terms.
- Consumer Complaints. To the extent Customer is a consumer under the California Civil Code §1789.3, Customer may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
- EU Dispute Resolution. The EU Commission has created an internet platform for online dispute resolution. The platform serves as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts. More information is available at the following link: http://ec.europa.eu/consumers/odr. Raw Engineering is neither willing nor obliged to participate in this or any other dispute resolution procedure before a consumer arbitration board.
Last modified 5mo ago