Terms and Conditions

Capitalized terms used herein and not defined shall have the meaning ascribed to such terms in the Order Form (as defined below). Customer and Rockhopper each may sometimes be referred to in these Terms and Condition (this "Agreement") as a "Party" or collectively as the "Parties."

The Parties hereby agree as follows:

DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

"Add-in" means any third-party integration which we provide access to the Platform.
"Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
"Applicable Law" means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
"Authorized User" means Customer's employees, contractors, or agents authorized by Customer to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that any contractors' or agents' access to and use of the Platform will be limited to their provision of services to Customer. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Platform using any Authorized Users' access credentials.
"Confidential Information" means: (i) with respect to Rockhopper, the Platform, the Website, the Output, the Aggregate Data, the Usage Data, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to Customer, any non-public information or material regarding Customer's legal or business affairs, financing, employees, customers, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the "Receiving Party"); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the "Disclosing Party"); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
"Customer Data" means any data that Customer or its Authorized Users submit to the Platform or Website, including, without limitation, personal information (such as name, email address, and other identifying information) of Authorized Users.
"Documentation" means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Services, the Platform or the Website, as provided or made available by Rockhopper to Customer whether in a written or electronic form.
"Feedback" shall have the meaning set forth in Section 5.3.
"Harmful Code" means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or the Website, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, "Trojan horses," "viruses," "worms," "time bombs," "time locks," "devices," "traps," "access codes," or "drop dead" or "trap door" devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform or the Website to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform or the Website.
"Order Form" means an order form for the Services mutually executed by the Parties that sets forth, among other things, the Term, the Rates (as defined below) and any special terms applicable to Customer's subscription.
"Output" means the reports, models, analyses, and related output that may be generated by Authorized Users use of the Platform and made available to Authorized Users as part of the Services.
"Platform" means Rockhopper's proprietary platform for last mile spreadsheet management.
"Rates" means the fees for the Services as set forth in the Order Form.
"Services" means Rockhopper provision to Customer of access to, and usage of, the Platform and the Website as set forth in this Agreement.
"Usage Data" means the data that we collect in connection with our monitoring of the performance and use of the Platform by Customer and Authorized Users, including without limitation, date and time that the Platform is accessed, the portions of the Platform visited, the frequency and number of times such pages are accessed, the number of times the Platform is used in a given time period and other usage and performance data.
"Website" means any website through which we provide access to the Platform.
PROVISION OF SERVICES.
Order Form. The Parties have entered into an Order Form, specifying the number of licenses for the Services being ordered from Rockhopper, the Rates, and the Term (as defined below). The terms and conditions of the Order Form are hereby incorporated by reference.
Services. During the Term, we will provide the Services to Customer subject to the terms and conditions of this Agreement. Subject to such terms and conditions, we hereby grant Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to: (i) access and use the Platform via the Website and Add-in for Customer's internal business purposes; (ii) allow Authorized Users to access and use the Platform for their internal business purposes; and use the Documentation solely for Customer's internal business purposes in connection with its use of the Services.
Modifications; New Functionalities. We reserve the right to modify the Platform, the Website, the Add-in, and the Output from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Platform, Website or Add-in, or any Output or portion thereof, at any time during the Term at our sole and reasonable discretion. Any such modification or discontinuance during the Term will not materially decrease the overall functionality of the Platform, Website or the Add-in. From time to time, we may develop additional functionalities of the Platform outside of the Scope of Functionality (each, a "New Functionality"). If Customer desires access to any New Functionality upon Rockhopper's making such New Functionality available to its customers for purchase, Customer may enter into an Order Form for such New Functionality, which purchase order shall set forth the additional fees associated with such New Functionality.
Beta Features. From time to time, we may invite Customer to try "beta" features or functionalities of the Platform which are not generally available to our customers for production use at no charge. Customer may accept or decline any such trial in its sole discretion. Such beta features are for evaluation purposes only and not for production use, are not considered part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for production use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Platform. We will have no liability to Customer or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and Customer's use of any beta feature is at Customer's own risk.
Service Level Commitment. During the Term, Rockhopper, or our contractors, shall host the Platform such that the Platform is available for use by Customer and its Authorized Users. Rockhopper and/or our contractors shall periodically monitor the Platform to optimize performance of the Platform, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control . We will notify Customer of any unavailability or other issue with the Services, or the Platform. Customer and its Authorized Users will be responsible for obtaining Internet connections and other third-party software and services necessary for them to access the Platform and the Services.
Customer Obligations Regarding Licenses and Credentials. Customer hereby agrees not to, nor permit any of its Authorized Users to, share, distribute, or otherwise make available any licenses or credentials provided under this Agreement and any Order Form. Further, Customer commits to purchasing a separate license for each Authorized User who utilizes the Services, ensuring that each such Authorized User possesses a unique and dedicated license for their use of the Services.
Suspension. Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) we reasonably determine that (A) there is a threat or attack on any of our intellectual property; (B) Customers or any Authorized User's use of the our Services disrupts or poses a security risk to our intellectual property or to any other customer or vendor of Rockhopper; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) our provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of ours has suspended or terminated our access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4.3 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). We shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. We shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Access to Information. We reserves the right to access, read, preserve, and disclose any information provided in connection with the Services to the extent reasonably necessary or desirable to (i) satisfy any applicable law, regulation, legal process or governmental request, or (ii) address and respond to Customer's support requests
FEES AND PAYMENT.
Rates and Payments. In consideration for Customer's access to and use of the Services, it shall pay Rockhopper the fees set forth in the applicable Order Form (the "Rates") via ACH or wire of immediately available funds. Unless otherwise provided in an Order Form, all Rates are due and payable within thirty (30) days of the date of the invoice therefor. Except as otherwise provided in an Order Form, Rockhopper may increase the Rates from time to time by upon written notice to Customer; provided, however, that any amendment to the Rates shall not be effective until the following Renewal Period (as defined on the Order Form).
Taxes. Rates and other charges due hereunder are in addition to, and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes ("Taxes") now or hereafter levied, all of which will be for Customer's account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to entering into this Agreement. If we are required to collect and remit Taxes on Customer's behalf, we will invoice Customer for such Taxes, and Customer will pay us for such amounts in accordance with the payment terms set forth in this Section 3.2. Customer hereby agrees to indemnify, defend, and hold Rockhopper, our Affiliates, our suppliers and hosting providers, and our and their respective Representatives (as defined below) harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys' fees) ("Losses") incurred by any such parties in connection with any Taxes and related costs, interest, and penalties paid or payable by Rockhopper on Customer's behalf. For the avoidance of doubt, we will only be responsible for taxes related to our income, property, franchise, or employees.
Late Payments. In the event that any invoiced amount is not received by the due date as set forth in Section 3.2 and Customer fails to cure such default within thirty (30) days of such due date, with or without written notice of such default from Rockhopper, then, without limiting our rights and remedies, we may: (i) charge interest on the outstanding balance (not to exceed the maximum rate permitted by law); (ii) condition future Renewal Periods on payment terms shorter than those herein; (iii) suspend the Services pursuant to Section 4.3; and/or (iv) terminate this Agreement in accordance with Section 4.2.
Non-Refundable. Unless otherwise expressly provided for in this Agreement, (i) all Rates are based on Services purchased and not on actual use; and (ii) all Rates paid under this Agreement are nonrefundable.
No Contingency for Future Commitments. Customer agrees that payment of the Rates under this Agreement is not contingent on the delivery of any future Platform functionalities, features, Output, or any other future commitments, except as set forth in Section 2.2 of this Agreement.
No Deductions or Setoffs. All amounts payable to Rockhopper under this Agreement shall be paid by Customer to us in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
TERMINATION AND SUSPENSION.
Term. The initial term of this Agreement shall be as provided in the Order Form (the "Initial Term"), unless terminated earlier pursuant to this Agreement's express provisions. This Agreement will automatically renew for successive terms of equal length to the Initial Term unless earlier terminated pursuant to the express provisions of this Agreement or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term") (i.e., if the Initial Term is two (2) years, each successive Renewal Term shall be two (2) years; if the Initial Term is one (1) year, each successive Renewal Term shall be one (1) year, etc.).
Termination. Either Party may terminate this Agreement effective on written notice to the other Party (i) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors, or (ii) if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. We may also terminate this Agreement (i) upon five (5) business days' written notice to Customer if Customer breaches Section 8 of this Agreement, and such breach is not cured within such five (5) business day period, or (ii) upon written notice to Customer under the limited circumstances set forth in Section 11.2 below.
Suspension for Non-Payment. We may suspend the Services upon written notice to Customer if any undisputed invoiced amount is more than thirty (30) days past due. We will not suspend the Services while Customer is disputing any invoiced amount due to us reasonably and in good faith and is cooperating diligently to resolve the dispute. If the Services are suspended for non-payment, we may charge a reactivation fee to reinstate the Services. Customer will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by Customer's refusal to pay any invoiced amounts that it is not disputing in good faith.
Effect of Termination. Upon termination of this Agreement as set forth in Section 4.2: (i) we will stop providing the applicable Services, and Customer will immediately cease, and cause its Authorized Users to cease, all access to and use of the Website and Platform; (ii) Customer will promptly pay all unpaid Rates, applicable Taxes, and all other amounts due hereunder; and (iii)), upon written request, each Party will either return to the Disclosing Party (or, at such Disclosing Party's instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party's Confidential Information that are in the Receiving Party's possession or control. Except as described in the immediately preceding sentence, Customer shall not be entitled to any refunds hereunder.
Survival. The following provisions will survive termination of this Agreement: Section 1 ("Definitions"), Section 3 ("Rates and Payment") until Customer has paid all Rates, applicable Taxes, and other amounts due hereunder, Section 4.4 ("Effect of Termination"), this Section 4.5 ("Survival"), Section 5 ("Confidentiality; Feedback"), Section 6.2 ("Aggregated Data"), Section 7 ("Intellectual Property"), Section 9.2 ("Disclaimer"), Section 10 ("Limitation of Liability"), Section 11 ("Indemnification"), and Section 12 ("General Provisions").
CONFIDENTIALITY; FEEDBACK.
Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors or agents (its "Representatives"), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party's Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 5.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
Feedback. During the Term, Customer may elect to provide us with feedback, comments, and suggestions with respect to the Platform, the Output, the Website, or the Services ("Feedback"). Customer agrees that Rockhopper will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer or any Authorized User.
CUSTOMER DATA AND OUTPUT.
Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data only for the purpose of providing the Services hereunder or as otherwise expressly permitted herein. Upon expiration or termination of the Agreement, we may retain an archival copy of the Customer Data kept in the normal course of business or for purposes of complying with Applicable Law.
Aggregated Data. Customer acknowledges and agrees that the Rockhopper may use, and may permit its third-party service providers to access and use, Customer Data, in anonymous and aggregate format, and combined with other data including, without limitation, data provided by other Rockhopper Customers, and Usage Data (collectively, "Aggregate Data"), for the purpose of operating, maintaining, managing, and improving our products and services including the Platform and the Services and in order to gain useful industry intelligence and benchmark industry trends. Aggregate Data does not identify Customer or any Authorized User. Customer hereby agrees that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data, or a subset thereof, for any purpose.
Output. Subject to the terms and conditions of this Agreement, Rockhopper hereby grants Customer a non-exclusive, worldwide, full paid-up, royalty-free right and license to use the Output for its internal business purposes.
Data Security. We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Customer Data, from unauthorized use or disclosure.
INTELLECTUAL PROPERTY. As between the Parties, all right, title, and interest in and to the Platform, the Website, the Output, the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of Rockhopper. Subject to Section 6.1 and Section 6.3, all right, title, and interest in and to Customer Data, and all intellectual property rights therein, will be and remain Customer's sole and exclusive property.
USE AND LIMITATIONS OF USE.
Restrictions on Use. Except as expressly permitted under Section 6.3 with respect to Output, Customer will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Platform, the Website, or the Add-in; (ii) allow an Authorized User to share with any third party his or her access credentials; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform, the Website, the Add-in, or the Output; (iv) modify, adapt, or translate the Platform, the Website, the Add-in, or the Output; (v) make any copies of Platform, the Website, or the Add-in; (vi) resell, distribute, or sublicense the Platform or the Website or use either of the foregoing for the benefit of anyone other than Customer or the Authorized Users; (vii) save, store, or archive any portion of the Services outside the Platform other than those outputs generated through the intended functionality of the Platform as set forth in the Documentation without the prior, written permission of Rockhopper in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Platform, the Website, or the Output; (ix) use the Platform, the Website, the Add-in, or the Output in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; or (x) introduce, post, or upload to the Platform or the Website any Harmful Code.
Compliance. We have the right to monitor Customer's compliance with this Section 8. If any such monitoring reveals that Customer is not using the Website, the Platform, the Add-in or the Output in compliance with this Section 8, then Customer will remedy any such non-compliance within five (5) business days of receiving notice from us, including, if applicable, through the payment of additional Rates. Failure to remedy such default shall be deemed a material breach of this Agreement by Customer.
REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement or the Order Form, as applicable, and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this Agreement shall comply with all Applicable Laws.
Disclaimer. ALL OUTPUT, DATA, AND OTHER INFORMATION PROVIDED BY ROCKHOPPER HEREUNDER ARE FOR INFORMATIONAL PURPOSES ONLY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE SERVICES, THE PLATFORM, THE WEBSITE, THE ADD-IN, THE OUTPUT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND NEITHER ROCKHOPPER, NOR OUR AFFILIATES OR SUPPLIERS, MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WE ARE NOT RESPONSIBLE FOR ANY MATERIALS PURCHASED FROM THIRD PARTY PROVIDERS OF SUCH MATERIALS AND WE DO NOT MAKE ANY REPRESENTATIONS REGARDING THE SAME. IF YOU DECIDE TO PURCHASE OR OTHERWISE USE ANY SUCH THIRD PARTY MATERIALS, YOU DO SO AT YOUR OWN RISK. TO THE EXTENT THAT ROCKHOPPER, OUR AFFILIATES, AND OUR SUPPLIERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH CUSTOMER'S FAILURE TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER OR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE
POSSIBILITY THEREOF; AND (II) EACH PARTY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE RATES PAID BY CUSTOMER HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
INDEMNIFICATION.
Indemnification by Customer. Customer will indemnify, defend, and hold Rockhopper, our Affiliates, our suppliers and hosting providers, and our and their respective Representatives harmless from and against any and all Losses incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a "Claim") arising from Customer's or any of its Authorized Users' (i) breach or violation of this Agreement; (ii) Customer's, its Representatives', or its customers' use of or reliance on the Output or any portion thereof; or (iii) gross negligence or willful misconduct.
Indemnification by Rockhopper. Rockhopper will indemnify, defend, and hold Customer and its Representatives harmless from and against any and Losses incurred by any such parties in connection with any third-party Claim (i) arising from Rockhopper's gross negligence or willful misconduct, or (ii) alleging that the Platform or Customer's access thereto in accordance with this Agreement, infringes or misappropriates any third-party intellectual property rights. In the event that we reasonably determine that the Platform, is likely to be the subject of a third-party Claim, we will have the right (but not the obligation), at our own expense, to: (i) procure for Customer the right to continue to use the Platform, as provided in this Agreement; (ii) replace the infringing components of the Platform with other components with equivalent functionality; or (iii) suitably modify the Platform so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to Customer. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any third party Claim to the extent the third-party Claim arises from or is based upon (i) Customer's or its Authorized Users' use of the Platform not in accordance with the Documentation or this Agreement; (ii) any unauthorized modifications, alterations, or implementations of the Platform made by or on behalf of Customer (other than by Rockhopper); (iii) use of the Platform, the Website with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iv) use of the Platform in a manner or for a purpose for which they were not designed. This Section 11.2 states Customer's sole and exclusive remedy, and our sole and exclusive liability, regarding any third-party Claim.
Procedure. The indemnification obligations set forth in Section 11.1 and Section 11.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim; (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party's approval.
GENERAL PROVISIONS.
Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that, in the case of Customer making the assignment or transfer, the assignee or transferee is not a direct or indirect competitor of Rockhopper, and, further provided, that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard for choice of law provisions thereof.
Exclusive Forum. Subject to Section 12.5, below, the Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in New York, New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Notices. All notices permitted or required by this Agreement shall be in writing, and shall be deemed to have been delivered and received (i) when personally delivered, (ii) on the third business day after the date on which deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, (iii) on the date on which transmitted by email or other electronic means producing a tangible receipt evidencing a successful transmission, or (iv) on the next business day after the date on which deposited with a nationally recognized private courier (e.g., FedEx, DHL, UPS, etc.) for overnight delivery, addressed to the Party for whom intended at the mailing address or email address set forth on the Order Form for such Party, or such other mailing address or email address, notice of which has been delivered in a manner permitted by this Section.
Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
Force Majeure. Except for Customer's obligations to pay any Rates and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third party services, or virus attacks or hackers.
Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
Publicity. Customer hereby grants us a non-exclusive, royalty-free, worldwide license to utilize the name and logo of Customer on our Website, marketing materials, or any other public manner, without requiring Customer's prior written consent. This license permits us to showcase Customer as a client for promotional and marketing purposes during the Term. Customer acknowledges and agrees that we may display the name and logo in a manner consistent with standard industry practices, and that we shall have the right to modify the size and format of the name and logo solely for presentation purposes.
Complete Understanding. This Agreement, together with the Order Form and all Exhibits and Appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and the Order Form, Exhibits or Appendices, the following order of precedence governs: (i) first, the Order Form, Exhibits and Appendices to this Agreement, and (ii) second, the body of this Agreement.

Terms & Conditions