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Terms and Conditions

THIS AGREEMENT IS ENTERED INTO BETWEEN RITHM CORP. (“RITHM”) AND CUSTOMER AND GOVERNS CUSTOMER’S ACCESS TO AND USE OF THE SERVICES.

IF CUSTOMER REGISTERS FOR, OR RECEIVES A FREE TRIAL OF THE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

CUSTOMER ACCEPTS THIS AGREEMENT TOGETHER WITH ITS EXHIBITS AND AGREES TO THIS AGREEMENT’S TERMS AND CONDITIONS AND MAKES THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN BY SIGNING BELOW. THIS AGREEMENT CAN ONLY BE ENTERED INTO BETWEEN RITHM AND A CUSTOMER THAT IS A COMPANY OR OTHER LEGAL ENTITY. THE PERSON ACTING ON BEHALF OF CUSTOMER REPRESENTS THAT HE OR SHE HAS THE APPROPRIATE AUTHORITY TO ENTER INTO THIS AGREEMENT ON CUSTOMER’S BEHALF AND BIND CUSTOMER TO THIS AGREEMENT’S TERMS AND CONDITIONS AND MAKE THE REPRESENTATIONS AND WARRANTIES HEREIN. IF THE PERSON ACTING ON BEHALF OF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT OR REPRESENTATIONS AND WARRANTIES, THE PERSON ACTING ON BEHALF OF CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.

This Agreement is effective between Customer and RITHM as of the Effective Date.

1. DEFINITIONS

  • “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the ownership and/or voting interests of the subject entity. In the case of Customer, “Affiliates” will also include any and all parties related to Customer or its work or mission.
  • “Agreement” means this Master Subscription Agreement.
  • “Beta Release” is defined in Section 2.2.
  • “CCPA” is defined in Section 2.4.
  • “Claim” is defined in Section 9.1.
  • “Confidential Information” or “Customer’s Confidential Information” includes all of the following, whether in tangible or intangible form (e.g., electronically communicated information, information retained in memory, etc.): the terms of this Agreement; any information about Customer, its Affiliates, and/or Users that could reasonably be considered to be confidential; and any non-public information about or relating to Customer’s, its Affiliates’, or the Users’ finances, business strategy, business plans, present or future products, technical capabilities, employees, vendors, or customers.
  • “Day” or “Days” means calendar days, unless otherwise specifically stated.
  • “Dispute” is defined in Section 12.1.
  • “Documentation” means any manuals, descriptions, instructions, or other materials regarding the Services that RITHM provides to Customer, which includes and is limited to the online user guide(s) for the Services, the applicable RITHM support policy, and RITHM’s brand guidelines and policies, as updated by RITHM from time to time, a copy of which are attached hereto as Exhibit A.
  • “Effective Date” means the date that an authorized representative of Customer accepts this Agreement.
  • “FAA” is defined in Section 12.3.1.
  • “Feedback” is defined in Section 6.3.
  • “Force Majeure” means all events beyond either party’s reasonable control, including, for example, acts of war, acts of god, acts of government, earthquakes, floods, embargoes, riots, terrorism, sabotage, labor shortage or disputes (outside of the affected party’s own employees or volunteers), or failure or delay of the Internet, Internet service providers, disruptions in telecommunication networks and other electronic communications, non-delivery or late delivery by suppliers, and force majeure on the part of suppliers.
  • “Free Trial” is defined in Section 2.2.
  • “GDPR” is defined in Section 10.6.
  • “ICC” is defined in Section 12.3.3.1.
  • “Customer” means the company or other legal entity who is a subscriber to the Services and on whose behalf the individual accepting this Agreement is acting.
  • “Customer Data” is defined in Section 3.2.
  • “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example and without limitation, viruses, worms, time bombs, and Trojan horses.
  • “Non-excludable Condition” is defined in Section 10.5.1.1.
  • “Order Form” means the document, which may include an online order, specifying the Platform services to which Customer subscribes and the subscription start and end dates. Each and every Order Form is subject to the terms and conditions of this Agreement.
  • “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
  • “Platform” means the Rithm Platform.
  • “RITHM IP Rights” is defined in Section 6.1.
  • “RITHM Privacy Policy” refers to RITHM’s policies regarding information it collects in connection with providing products and services to customers, which policies can be found at rithmXO.com together with any applicable RITHM product-specific privacy policy that is provided to Customer via notice.
  • “RITHM Technology” means (i) the RITHM name, RITHM logo, RITHM.software domain name, product and service names associated with the Services, and other RITHM intellectual property; (ii) certain audio and visual information, documents, software, and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information.
  • “Service Fees” is defined in Section 5.1.
  • “Services” means the specific components of the Rithm platform to which Customer subscribes and services detailed under a Scope of work or that are provided to Customer under a Free Trial or Beta Release, which may include Rithm a cloud based software for business processes and data.
  • “Term” is defined in Section 4.1.
  • “Third-Party Applications” means applications, services, or software products that are provided by third parties.
  • “User” means Customer or Customer’s employees, volunteers, or independent contractors, who are authorized under this Agreement or a separate written agreement to access and use the Services, and who are under Customer’s supervision and control.

2. LICENSE TO ACCESS & USE THE SERVICES

  • 2.1. License to Services. RITHM grants Customer the non-exclusive and non-transferable right to access and use the Services during the Term, subject to this Agreement’s terms and conditions, and as set forth in the applicable Order Form(s). RITHM will also provide technical support consistent with the applicable RITHM support policy. In addition to the foregoing, it is agreed that Customer’s Affiliates shall also be entitled to receive, exercise, and enjoy all rights, benefits, and privileges flowing to Customer under this Agreement. However, it is also agreed that Customer’s Affiliates shall be subject to no liabilities or performance obligations of Customer hereunder (including indemnification or other obligations), and that RITHM will look solely to Customer for all performance obligations and applicable indemnifications set forth herein.
  • 2.2. Free Trials & Beta Releases. RITHM may offer Customer access to some or all of the features of the Platform on a trial basis free of charge (“Free Trial”) or make “alpha”, “beta”, or other early-stage services (“Beta Releases”) available to Customer. A Free Trial may include limited features, a short-term period of use or a demonstration version. RITHM will determine, at its sole discretion, the availability, duration (the “Trial Period”) and features of each Free Trial. Additional Free Trial or Beta Release terms and conditions may appear on the applicable registration webpage or in a separate document or documents, including but not limited to the period during which Customer will have access to a Beta Release (the “Beta Period”). Any such additional terms and conditions that are made available to Customer and that relate solely to the Free Trial or Beta Release are incorporated into this Agreement by reference and are legally binding; provided, however, that Customer may terminate this Agreement by written notice to RITHM in the event Customer does not agree to any such additional terms and conditions.
    • 2.2.1. ANY DATA CUSTOMER OR USERS ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER OR USERS, DURING CUSTOMER’S TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH NEITHER RITHM NOR ITS AFFILIATES WILL BE RESPONSIBLE UNLESS (I) RITHM OR ITS AFFILIATES KNEW, OR SHOULD HAVE KNOWN OF SUCH BUGS, ERRORS, OMISSIONS, OR OTHER PROBLEMS, AND (II) SUCH BUGS, ERRORS, OMISSIONS, OR OTHER PROBLEMS CAUSE DAMAGE TO CUSTOMER OR ITS AFFILIATES.
    • 2.2.2. NOTWITHSTANDING THE REPRESENTATIONS AND WARRANTIES AND MUTUAL INDEMNIFICATION PROVISIONS BELOW, DURING THE TRIAL PERIOD, AND AS TO ANY BETA RELEASE, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR SUPPORT, MAINTENANCE, OR STORAGE OBLIGATIONS AND NEITHER RITHM NOR ITS AFFILIATES WILL HAVE ANY INDEMNIFICATION OBLIGATIONS OR LIABILITY WHATSOEVER TO CUSTOMER RELATED TO THE SERVICES, FREE TRIAL, OR BETA RELEASE, EXCEPT TO THE EXTENT CAUSED BY RITHM’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, OR BY BUGS, ERRORS, OMISSIONS, OR OTHER PROBLEMS ABOUT WHICH RITHM OR ITS AFFILIATES KNEW, OR SHOULD HAVE KNOWN. CUSTOMER ENGAGES IN A FREE TRIAL AND/OR USES A BETA RELEASE AT ITS DISCRETION AND SOLE RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) RITHM DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S USE OF THE SERVICES DURING A FREE TRIAL OR USE OF A BETA RELEASE, UNLESS CAUSED BY RITHM’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, OR CAUSED BY BUGS, ERRORS, OMISSION, OR OTHER PROBLEMS ABOUT WHICH RITHM KNEW, OR SHOULD HAVE KNOWN, AND (II) EITHER PARTY MAY TERMINATE A FREE TRIAL OR BETA RELEASE AT ANY TIME IN ACCORDANCE WITH THE TERMS HEREOF.
  • 2.3. Necessary Equipment. Customer recognizes and agrees that to access and use the Services: (i) Customer and its Users’ systems must meet certain minimum system requirements; and (ii) certain other third-party software or applications may need to be acquired, installed, and/or licensed directly by Customer. RITHM is not responsible for, nor does it make any representations or warranties concerning the performance of such third-party components. Customer is responsible for obtaining, installing, and maintaining the equipment and network services necessary to access and use the Services and for any network provider or other charges associated with connecting to, accessing, and using the Services.
  • 2.4. Customer Responsibilities. Customer is responsible for all User account activities that occur under Customer’s User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify RITHM promptly of any such unauthorized use of which Customer is aware; (iii) comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100, et seq. (“CCPA”), the Spam Act 2003 (cth), and the General Data Protection Regulation (EU2016/679) (“GDPR”), as applicable; and (iv) access and use the Services, RITHM Technology, and RITHM intellectual property only in accordance with this Agreement, the applicable Order Form(s), and Documentation.
  • 2.5. Use Guidelines & Prohibited Uses. Subject to Section 2.1, only Customer, Users, and Affiliates and their users may access and use the Services or any part or component of the Services. RITHM explicitly prohibits Customer from permitting, allowing, or facilitating the use of or access to the Services or any part of the Platform by unauthorized persons, entities, or third parties. Customer will not in connection with the Services: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, use the Services in connection with providing services to any third party, or otherwise commercially exploit or make the Services available to any third party, other than as specifically permitted by this Agreement or in a separate written agreement between RITHM and Customer; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) 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; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (v) maliciously interfere with or disrupt the integrity or performance of the Services, the Platform, or the data contained therein; (vi) attempt to gain unauthorized access to the Services, Platform, or its related systems or networks; or (vii) allow unauthorized users to access the Services or the Platform. User subscriptions may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, or no longer require ongoing use of the Services. At all times Customer remains responsible for User’s use of the Services and will ensure that such use complies with the terms of this Agreement. A breach of this Agreement by any User will be considered a breach by Customer hereunder. RITHM may audit accounts to ensure compliance. Any unauthorized use or access will constitute a material breach of this Agreement and may result in termination of this Agreement or suspension or termination of the offending User’s access to the Services. Customer may also be charged for and responsible for payment related to excess usage in violation of this Agreement.
  • 2.6. Additional Restrictions. During the Term, Customer will take commercially reasonable precautions to not, and to ensure that Users do not, permit any third party to: (i) access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; (ii) knowingly use the Services in a way that harms RITHM or RITHM’s Affiliates, resellers, distributors, service providers, and/or suppliers; (iii) resell, copy, transfer, reproduce, modify, translate, prepare derivative works of, decompile, reverse engineer (except to the extent permitted by law), disassemble, or otherwise attempt to derive source code from the Services; (iv) knowingly use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, but not limited to, Malicious Code; (v) circumvent or disable any security or other technological features or measures of the Services; (vi) allow non-Users to access the Services without sufficient rights to use the Services; or (viii) access the Services in order to (A) build a competing product or service, (B) build a product or service using features, functions, or graphics from the Services, or (C) copy any features, functions, or graphics of the Services. Except for the express rights granted herein or in any other document incorporated herein, RITHM does not grant any other licenses, whether express or implied, to any RITHM software, services, technology, or intellectual property. Customer’s failure to comply with any of the terms set forth above under Sections 2.4, 2.5, and 2.6 will constitute a material breach of this Agreement and RITHM may terminate this Agreement if Customer fails to cure any such breach(es) within five (5) Days after written notice from RITHM. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that Customer is free to develop its own software and systems that contain similar features and perform similar functions to and/or that otherwise compete with the Services and/or the Platform, provided that Customer does not violate RITHM’s patent, copyright, trade secret, or other intellectual property rights in the RITHM Technology and provided that Customer uses such software and systems for its own internal use.
  • 2.7. Third-Party Providers. Certain third-party providers, some of which may be identified on RITHM’s website, offer products and services related to the Services, including implementation, customization, plug-ins, application programming interfaces (“APIs”), and other services related to Customer’s use of the Services and applications (both offline and online) that work in conjunction with the Services, such as by exchanging data with the Services or by offering additional functionality within the user interface of the Services through use of the Services’ API. RITHM does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by RITHM as “certified,” “validated,” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
  • 2.8. Integration. The Services may contain features designed to interoperate with Third-Party Applications. To use such features, Customer may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Applications ceases to make the Third-Party Applications available for interoperation with the Services on reasonable terms, RITHM may cease providing such features without entitling Customer to any refund, credit, or other compensation.
  • 2.9. Updates and Upgrades. The Services are subject to change from time to time. RITHM reserves the right, at its discretion, to change, modify, add, remove, or discontinue the Services, in whole or in part, at any time without liability to Customer; provided that RITHM will provide ninety (90) Days’ written notice of any such change, modification, addition, removal, or discontinuation that would reasonably be considered to materially and adversely affect Customer’s use of the Services. If RITHM discontinues the Services pursuant to this Section 2.9 and Section 4, RITHM will provide Customer a pro-rata refund of all prepaid but unused Service Fees for the remainder of the then-current Term. Future versions of the Services may be developed and released by RITHM at its sole discretion. RITHM does not warrant or represent that it will develop or release any upgrades within a given timeframe. If Customer is at any time dissatisfied with the Services, Customer may terminate this Agreement and discontinue its use of the Services as Customer’s sole remedy.
  • 2.10. Third-Party Providers. Customer acknowledges and consents to RITHM’s use of third-party information technology providers, including, but not limited to, cloud service providers, to deliver the Services to Customer provided that any such third-party information technology provider agrees to security, confidentiality, and data protection privacy provisions no less stringent than those set forth in this Agreement.

3. SECURITY AND DATA PRIVACY

  • 3.1 Protection of Customer Data.
    • 3.1.1. RITHM has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy, and integrity of Customer Data. RITHM will not be responsible for loss of data transmitted on networks not owned or controlled by RITHM, including the internet or any third-party hosting services.
    • 3.1.2. For Customers located in the European Union or the European Economic Area, the terms of the GDPR Data Protection Addendum entered into by the parties are hereby incorporated by reference pursuant to Section 10.6 (Local Law Provisions – EU/EEA and Switzerland Data Processing).
  • 3.2 Customer Data. Customer acknowledges that Customer and its Users will provide RITHM with information, data, records, and materials in connection with accessing and using the Services pursuant to this Agreement, including, without limitation, audio files or other sounds, videos, photographs, or other images, data files, written text, software, and music that Customer or any User submits, displays, or posts on or through the Services. The foregoing and all other data or information collected using the Services or submitted by Customer or any User in connection with the Services is collectively referred to herein as “Customer Data”. Customer grants to RITHM and its Affiliates a royalty-free, non-exclusive, worldwide, revocable right and license, during the Term, to collect, use, copy, store, transmit, modify, reproduce, create derivative works of, display and distribute Customer Data in connection with the provision of Services for the sole purpose of developing and improving RITHM’s products and services, and in accordance with RITHM’s Privacy Policy. RITHM will not use Customer Data to identify a natural person, and RITHM will not take any steps to directly or indirectly identify a natural person after receiving Customer Data. RITHM will protect the confidentiality of Customer Data with the same care that RITHM uses for its own similar information. Customer’s use of the Services will be governed by the RITHM Privacy Policy and the confidentiality provisions of this Agreement. Customer may immediately terminate this Agreement if RITHM materially breaches this Section 3.2 or the RITHM Privacy Policy. The RITHM Privacy Policy is hereby incorporated into and made a part of this Agreement by reference. Customer will be notified in writing of any change to the RITHM Privacy Policy. In the event that there is a conflict between the RITHM Privacy Policy and this Agreement, the terms of this Agreement will govern.
  • 3.3 Customer Obligations.
    • 3.3.1. Collection and Use of Customer Data.
      • (a) Except as expressly provided in Section 9.1 (Indemnification by RITHM) and Section 8.1 (Warranty by RITHM), Customer is solely responsible for (i) the accuracy, quality, content, legality, and its use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users outside of the Services; and (ii) its compliance with all applicable local laws, and terms and conditions related to procurement and use of Customer Data.
      • (b) Customer will maintain a legally-adequate privacy policy on its sites that are associated with the Services and provide all required disclosures to its Users. Where RITHM has provided Customer with notice indicating that Customer needs particular permission from a specific person or entity, Customer will obtain all necessary rights, releases, and consents from that person or entity to allow Customer Data to be collected, used, and disclosed as set forth, and to grant the limited rights to RITHM, herein. RITHM takes no responsibility and assumes no liability for any Customer Data other than its express obligations under Section 3 and Section 4.3.
    • 3.3.2. Personal Data. Except as expressly provided in Section 9.1 (Indemnification by RITHM) and Section 8.1 (Warranty by RITHM), and pursuant to applicable data protection laws, the parties agree that RITHM has no liability under this Agreement for Personal Data or Customer Data received from Customer, provided RITHM’s collection and use of any Personal Data or Customer Data is in accordance with the RITHM Privacy Policy and the terms of this Agreement.
    • 3.3.3. Customer Apps. Customer must ensure that it complies with any applicable third-party application development or distribution agreements when using or distributing the Services (including any RITHM applications). Customer may not take any action that would cause RITHM, the Services, or the RITHM Technology to become subject to any third-party terms including open source license terms.

4. TERM AND TERMINATION

  • 4.1. Term. This Agreement commences on the Effective Date and will remain in effect until expiration of all Platform subscriptions, Trial Periods, and Beta Periods (the “Term”), unless sooner terminated pursuant to this Agreement. Except as otherwise specified in an applicable Order Form, subscriptions will automatically renew for subsequent one-year periods at the then-current prices offered by RITHM, unless either party gives the other written notice of non-renewal at least forty-five (45) Days prior to expiration of the then-current Term. Trial Periods and Beta Periods will not renew unless otherwise agreed in writing by both parties.
  • 4.2. Termination for Cause. This Agreement may be terminated by either party: (i) if the other party is in material breach of this Agreement and the breach is not cured within thirty (30) Days after written notice of the breach, except that RITHM may terminate sooner as provided in Section 2.6 and Customer may terminate sooner as provided in Section 3.2; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
  • 4.3. Effect of Termination. Except as specified in Section 2.2, Customer Data will be stored during the Term according to RITHM’s current data retention policy in accordance with applicable law and subject to Section 3.2 and the RITHM Privacy Policy. In the event, however, that this Agreement expires or is otherwise terminated for any reason, RITHM agrees to immediately delete any and all Customer Data and Personal Data.
  • 4.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement: Section 1; Section 2.2; Sections 2.2.1 and 2.2.2; Section 2.7; Section 3.2; Section 3.3.2; Section 4.3; Section 4.4; Sections 5 through 12; Sections 13.1 through 13.4; and Sections 13.6 through 13.8.

5. FEES AND PAYMENT

  • 5.1. Fees. Customer will pay RITHM for use of the Services (“Service Fees”) as set forth in the applicable Order Form. Additional Services, peripherals, or features may be accessed at any point in time during the use of the Services and are field activated. Service Fees for these additional services are due and payable at the time of activation. Unless otherwise specified in the applicable Order Form, Service Fees are payable in advance. If, however, Customer’s use of the Services exceeds that for which it has paid in advance — whether due to the activation or use of one or more Rithm or peripherals in addition to those specified in the applicable Order Form — RITHM will notify Customer of its excess use and the fees associated with such excess use. If Customer fails to reduce its use after receipt of a notice of excess use, RITHM will invoice Customer for such excess use, and Customer will pay RITHM, for the Service Fees associated with such excess use.
    All fees are non-refundable, unless otherwise provided by this Agreement or by law, and the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the applicable Order Form.
    All Service Fees are due and payable in the currency stated on the Order Form.
  • 5.2. Billing and Payment Terms. Service Fees will be invoiced in accordance with the terms set forth in the applicable Order Form. Unless otherwise stated in the applicable Order Form, charges are due net thirty (30) Days from the invoice date. If Customer selects a payment method such as by credit card, bank transfer, or SEPA, Customer authorizes RITHM’s payment processor to charge Customer the applicable Service Fees and any other charges Customer may incur in connection with the Services automatically in accordance with the Order Form. Any invoices issued by RITHM must be paid in accordance with the terms specified in the applicable Order Form.
  • 5.3. Overdue Charges. If payment is not made within fifteen (15) Days after the respective due date, RITHM may charge Customer a late fee on the unpaid balance at the lesser of one point five percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. Should Customer not pay amounts when due, RITHM may also (at its discretion and in addition to other remedies it may have) suspend Customer’s access to the Services.
  • 5.4. Taxes. The fees for the Services exclude all sales, value-added, use, or similar taxes unless expressly stated otherwise. To the maximum extent permitted by law, Customer will pay such taxes and charges in full, except for taxes based on RITHM’s net income. To the extent that such taxes and charges are borne by RITHM then such taxes and charges will be added to the price payable by Customer to RITHM.

6. PROPRIETARY RIGHTS

  • 6.1. Services Ownership. Customer acknowledges that in providing the Services, RITHM uses the RITHM Technology. Customer further acknowledges that the RITHM Technology is covered by intellectual property rights and/or other proprietary rights (whether or not registered, specifically recognized, or perfected under applicable law), including, but not limited to, trademarks, trade dress, and service marks, patents and patent applications, and copyrights owned or licensed by RITHM (collectively, “RITHM IP Rights”). All title and intellectual property rights in and to the content of any Third-Party Applications or third-party website that may be linked to or viewed in connection with the Services are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Customer no rights to use such content except as allowed by such third party.
  • 6.2 Customer Data. As between RITHM and Customer, all Customer Data and Personal Data is owned exclusively by Customer. Customer Data and Personal Data will be considered Confidential Information subject to the terms of this Agreement.
  • 6.3 Feedback. RITHM (and its licensors, where applicable) will solely and exclusively own all right, title, and interest, including all related intellectual property rights, in and to the RITHM Technology and RITHM IP Rights, and any suggestions, ideas, enhancement requests, results from processing anonymized or non-personal aggregate data, feedback, recommendations or other information (the “Feedback”) provided by Customer, the Users, or any other party relating to the Services. Customer hereby irrevocably assigns any and all right, title, and interest in and to the Feedback to RITHM, and waives any and all applicable moral or similar rights. Customer hereby grants RITHM with an unlimited, perpetual, fully-paid-up, royalty-free, irrevocable, non-exclusive, sublicensable, transferrable, and worldwide license to reproduce, distribute, create derivative works from, display, perform, transmit, and otherwise exploit and allow others to exploit, in any manner and media and for any purpose, any Feedback that Customer or its Users provide to RITHM.
  • 6.4. Publicity; Trademark License. Unless Customer gives specific prior written approval, RITHM will not issue or authorize the publication of any news story or publicity relating to this Agreement, Customer, Customer’s Affiliates, or Customer’s Users. RITHM will not publicly state or imply any approval, sponsorship, or endorsement by Customer any of its Affiliates (including, without limitation, The Church of Jesus Christ of Latter-day Saints), nor will RITHM allow any statement or inference of such approval, sponsorship, or endorsement to continue. Customer hereby grants RITHM a non-exclusive, non-transferable license to use Customer’s name during the Term solely for publicity approved in writing by the parties pursuant to this Section 6.4, and strictly according to Customer’s brand guidelines. Except as provided in this Section 6.4, RITHM may not use Customer’s, its Affiliates, or the User’s name, likeness, trademark, service mark, logo, or other identifying information in connection with any publicity.
  • 6.5. Reservation of Rights. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services, the Platform, related data or materials, RITHM Technology, RITHM IP Rights, or any RITHM intellectual property are granted to Customer. RITHM expressly reserves all rights therein, including, without limitation all related intellectual property and other proprietary rights, that are not expressly granted to Customer pursuant to this Agreement. Nothing in this Agreement will be deemed to transfer the ownership thereof.

7. CONFIDENTIALITY

  • 7.1. Confidential Information. RITHM undertakes to maintain the strictest secrecy with respect to all Confidential Information that comes to its knowledge within the scope of the performance of this Agreement, in particular business or trade secrets of the Customer, and not to disclose or otherwise utilize such information.
  • 7.2. Use and Disclosure Restrictions. RITHM will not use Customer’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Except as otherwise expressly permitted by this Agreement, RITHM will not disclose Customer’s Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information to accomplish the purposes of this Agreement; provided, that, each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. RITHM will use all reasonable efforts to maintain the confidentiality of all Confidential Information of Customer in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. Customer will have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this Section 7.2. RITHM agrees to promptly report any breaches of this section to Customer.
  • 7.3. Exclusions. The obligations of confidentiality set forth in Section 7.2 will not apply to any information that RITHM can document: (i) is or becomes information in the public domain without any act or omission by RITHM, (ii) was in RITHM’s possession free of any obligation of confidentiality before being disclosed to RITHM by Customer, (iii) was disclosed to RITHM without restriction by a third party without breach by such third party of any obligation to keep such information confidential, or (iv) was independently developed by RITHM without use of any Confidential Information of Customer. RITHM may disclose Confidential Information as required pursuant to any valid regulation or order of a court or other governmental body or agency, provided that RITHM uses diligent efforts to limit disclosure and, if Customer requests, to seek confidential treatment or a protective order, and allows Customer to participate in the proceeding at its own expense; RITHM will use commercially reasonable efforts to promptly notify Customer of any disclosure required pursuant to this sentence.

8. REPRESENTATIONS AND WARRANTIES

  • 8.1. Warranty by RITHM. RITHM represents and warrants that, during the Term, the Services will perform materially in accordance with the description set forth in the Documentation or as such description may be updated by RITHM from time to time at its sole discretion without liability to Customer. For any breach of such warranty, Customer’s exclusive remedy is as provided in Section 4.2. NOTWITHSTANDING THIS SECTION, DURING A TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES.
  • 8.2. Warranty by Customer. Customer represents and warrants that its and any Users’ access and use of the Services does not and will not during the Term operate in any manner that would violate any applicable law or regulation or breach or violate any obligation Customer or Users may have to a third party. Customer further represents and warrants that Customer and Users will comply with all laws, rules, and regulations that are applicable to Customer’s use of the Services and that Customer Data will comply with all applicable laws and regulations, and will not infringe the copyright, trademark, trade secret, patent, privacy, publicity, or any other rights of any third party. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, or if RITHM becomes aware of any inaccuracies in Customer’s representations, in addition to any other remedies available at law or in equity, RITHM will have the right to immediately, in RITHM’s sole discretion, suspend the Services if deemed reasonably necessary by RITHM to prevent any liability for RITHM.
  • 8.3. Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED “AS IS” AND CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, RITHM DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. RITHM MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR BE FREE FROM SOFTWARE ERRORS. RITHM DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN RISK. IF CUSTOMER’S COMPUTER SYSTEM DOES NOT COMPLY WITH RITHM’S MINIMUM SYSTEM REQUIREMENTS, CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. PROVIDED THAT CUSTOMER’S COMPUTER SYSTEMS COMPLIES WITH RITHM’S MINIMUM SYSTEM REQUIREMENTS (AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN), RITHM WILL BE RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEMS, AUDIOVISUAL EQUIPMENT, OR INFRASTRUCTURE OR LOSS OF DATA CAUSED BY RITHM’S NEGLIGENCE OR INTENTIONAL MISCONDUCT.

9. MUTUAL INDEMNIFICATION

  • 9.1. Indemnification by RITHM. RITHM will defend, indemnify, and hold harmless Customer, User’s, Customer’s Affiliates and their officers, directors, volunteers, employees, and agents from and against any and all actual and alleged claims, damages, costs, losses, liabilities, and expenses (including reasonable attorneys’ fees) (collectively, “Claim(s)”) made or brought against Customer, Customer’s Affiliates, and/or any User by a third party arising out of or related to (i) RITHM’s breach of this Agreement, or inaccuracy in RITHM’s representations or breach of its warranties herein; (ii) RITHM’s violation of the rights of another; (iii) RITHM’s violation of privacy laws or the RITHM Privacy Policy; or (iv) allegations that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party. In the event of a Claim for infringement pursuant to Subsection (iv) above, RITHM will pay: (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by RITHM in a monetary settlement of such Claim; provided, that Customer (1) promptly gives written notice of the Claim to RITHM; (2) gives RITHM sole control of the defense and settlement of the Claim (provided that RITHM may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (3) provides to RITHM, at RITHM’s cost, all reasonable assistance. If RITHM believes the Services are or may become the subject of a claim of infringement, RITHM may, at its option and expense, procure for itself and/or Customer the right to continue to use the Services, or modify or replace the Services to make the Services non-infringing and functionally equivalent. If RITHM concludes, in its sole discretion, that neither of these alternatives is appropriate, it may terminate this Agreement and the Order Form upon thirty (30) Days’ written notice and will refund any pre-paid fees covering the remainder of the Term after such termination. In the event of a Claim under Subsections (i) through (iii) above, Customer and its Affiliates will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
  • 9.2. Indemnification by Customer. Customer will defend, indemnify, and hold harmless RITHM and its Affiliates, officers, directors, employees, and agents from and against each and every Claim brought against RITHM or its Affiliates by a third party arising out of or related to: (i) Customer Data or Customer’s unlawful use of the Services (as opposed to the Services itself); (ii) any Feedback Customer provides; (iii) Customer’s breach of this Agreement, or inaccuracy in Customer’s representations or breach of its warranties herein; (iv) Customer’s violation of the rights of another; or (v) Customer directly or indirectly instructing, inducing, encouraging, convincing, or otherwise suggesting or implying to any third party the use or configuration of the Services, alone or in combination with any third party product, system, service, or process, that results in the infringement or otherwise results in a violation of any third party patent or other intellectual property right. RITHM, its Affiliates, or both will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
  • 9.3. Procedures. The party seeking indemnification will provide detailed written notice to the indemnifying party promptly after learning of the Claim, and the indemnifying party will not be obligated to indemnify to the extent it is materially prejudiced by any delay in such notice. The indemnifying party will have the right to assume control of the defense and settlement of the Claim, and the indemnified party will provide reasonable assistance at the indemnifying party’s reasonable expense, provided that the indemnified party will not be obligated to participate in any settlement pursuant to which the indemnified party is required to admit liability or pay any amount other than amounts concurrently reimbursed by the indemnifying party.

10. LIMITATION OF LIABILITY

  • 10.1. Exclusions. TO THE FULLEST EXTENT PERMITTED BY LAW (AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, INCLUDING, WITHOUT LIMITATION, UNDER SECTIONS 2.2.1, 2.2.2, AND 8.3), UNDER NO CIRCUMSTANCES WILL EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST PROFITS, LOST REVENUES, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES FOR ANY REASON, INCLUDING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, EVEN IF THE DAMAGED PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 10.2. Maximum Liability. EXCEPT AS REQUIRED TO REPAIR OR REPLACE CUSTOMER’S COMPUTER SYSTEMS, AUDIOVISUAL EQUIPMENT, OR INFRASTRUCTURE IN ACCORDANCE WITH SECTION 8.3 OR UNDER SECTION 2.2.1 OR 2.2.2, IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY, TOGETHER WITH ALL OF ITS RESPECTIVE AFFILIATES, FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO RITHM FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTIONS, 2.2.1, 2.2.2, 5, OR 8.3 ABOVE.
  • 10.3. Basis of the Bargain; Failure of Essential Purpose. CUSTOMER ACKNOWLEDGES THAT RITHM HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE EXCLUSIONS AND LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
  • 10.4. Local Law Provisions — Germany. With respect to Customers domiciled in Germany:
    • 10.4.1. SOLELY IN THE EVENT THAT, PURSUANT TO APPLICABLE LAW, THE FOREGOING LIABILITY EXCLUSION, LIMITATIONS, OR BOTH ARE DETERMINED TO BE INVALID BY A COURT OR OTHER ADJUDICATIVE BODY WITH JURISDICTION OVER THIS AGREEMENT OR A DISPUTE BETWEEN THE PARTIES, THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS WILL NOT APPLY TO ANY CLAIM: (I) BASED ON A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (II) FOR PERSONAL INJURY OR DEATH; OR (III) AS TO WHICH APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS OR EXCLUSIONS.
    • 10.4.2. IN THE EVENT OF A SLIGHT NEGLIGENT INFRINGEMENT OF AN OBLIGATION WHICH IS MATERIAL FOR THE ACHIEVEMENT OF THE PURPOSE OF THIS AGREEMENT (CARDINAL OBLIGATION), THE LIABILITY OF THE PARTIES WILL BE RESTRICTED TO THE MAXIMUM FORESEEABLE AND TYPICAL DAMAGE. ANY FURTHER LIABILITY FOR SLIGHT NEGLIGENCE WILL BE EXCLUDED. ESPECIALLY ANY LIABILITY OF THE PARTIES FOR INDIRECT DAMAGES, SUCH AS LOST PROFITS AND LOST SAVINGS IS HEREBY EXCLUDED. THE AFOREMENTIONED RESTRICTION OF LIABILITY WILL ALSO APPLY TO THE PERSONAL LIABILITY OF THE EMPLOYEES, REPRESENTATIVES, AND AFFILIATES OF THE PARTIES.

11. ASSIGNMENT

  • 11.1. Except as expressly stated otherwise herein, neither party may assign or transfer (including by operation of law) any rights or obligations under this Agreement without the written consent of the other party, except that either party may, without such consent, assign or transfer this Agreement to a successor to the business of such party by merger, sale of assets, or otherwise. Any assignment or transfer, or attempted assignment or transfer, in violation of this Agreement is void. This Agreement is not intended to confer any rights or remedies upon anyone other than the parties hereto.
  • 11.2. Notwithstanding the foregoing, the parties expressly agree that RITHM is entitled to assign this Agreement with all rights and obligations to a RITHM Affiliate, which will then become a contractual partner of Customer. RITHM will make such a transfer after the conclusion of this Agreement

12. DISPUTE RESOLUTION; ARBITRATION

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES CUSTOMER TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH RITHM AND ITS AFFILIATES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM RITHM.

  • 12.1. Attempt to Resolve Informally. Customer and RITHM agree that the parties will notify each other in writing of any dispute, claim, or controversy arising out of or relating to this Agreement or the Services or the breach, termination, enforcement, interpretation, or validity of this Agreement (a “Dispute”) within thirty (30) Days of when it arises so that the parties can attempt in good faith to resolve the Dispute informally. Notice will be sent by certified mail or courier to the address or addresses listed below in Section 13.6. A notice must include: (i) the party’s name, postal address, and email address; (ii) a description of the nature or basis of the Dispute; and (iii) the specific relief that the party is seeking. If the parties cannot agree how to resolve the Dispute within thirty (30) Days after the recipient receives the claimant’s notice of the Dispute, either party may, as appropriate pursuant to this Section 12, commence an arbitration proceeding, small claims action, or action seeking injunctive or other equitable relief for the alleged infringement, misappropriation, or other violation of the claimant’s copyrights, trademarks, trade names, logos, trade secrets or patents. Customer and RITHM agree that any arbitration or other proceeding must be commenced within one (1) year after the Dispute arose; otherwise, Customer and RITHM agree that the claim is permanently barred (which means that neither party will any longer have the right to assert a claim regarding the Dispute).
  • 12.2. No Class Arbitrations, Class Actions, or Representative Actions. CUSTOMER AND RITHM AGREE THAT ANY DISPUTE IS PERSONAL TO CUSTOMER AND RITHM AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. NEITHER PARTY AGREES TO CLASS ARBITRATION OR TO AN ARBITRATION IN WHICH AN INDIVIDUAL ATTEMPTS TO RESOLVE A DISPUTE AS A REPRESENTATIVE OF ANOTHER INDIVIDUAL OR GROUP OF INDIVIDUALS.
  • 12.3. Binding & Final Arbitration. Except for a Dispute in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged infringement, misappropriation, or other violation of the claimant’s copyrights, trademarks, trade names, logos, trade secrets, or patents, Customer and RITHM each: (i) waive the right to have any and all Disputes resolved in a court; and (ii) waive the right to a jury trial. Instead, Customer and RITHM will arbitrate any and all Disputes, including, but not limited to, any concerning the scope or applicability of this Agreement to arbitrate, through final, binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
    • 12.3.1. Federal Arbitration Act. Customer and RITHM agree that this Agreement affects interstate commerce and that the enforceability of this Section will be governed by, construed and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) to the maximum extent permitted by applicable law.
    • 12.3.2. Disputes with RITHM CORP. If RITHM CORP. is a party to this Agreement at the time a Dispute arises (i.e., if RITHM CORP. has not assigned this Agreement pursuant to Section 11), the following provisions are applicable to any claim regarding the Dispute brought by or made against RITHM CORP.:
      • 12.3.2.1. Arbitral Body; Jurisdiction and Location. Customer and RITHM agree that: (i) any arbitration will occur in Salt Lake County, Utah; (ii) arbitration will be administered by JAMS pursuant to the appropriate JAMS rules, confidentially, and by a single arbitrator; (iii) all arbitration proceedings, including but not limited to any hearing or hearings, will be conducted in English; and (iv) judgment on the award may be entered by any court having jurisdiction.
      • 12.3.2.2. Authority of Arbitrator. As limited by the FAA, this Agreement and applicable JAMS rules, the arbitrator will have: (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, and (ii) the authority to grant any remedy that would otherwise be available in court including reasonable attorneys’ fees. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
      • 12.3.2.3. Rules of JAMS. The rules of, and additional information about, JAMS are available on the JAMS website at http://www.jamsadr.com/, as may be updated from time to time. By agreeing to be bound by this Agreement, Customer either (i) acknowledges and agrees that Customer has read and understands the rules of JAMS or (ii) waives Customer’s opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
    • 12.3.3. Reserved
      • 12.3.3.1. Arbitral Body; Jurisdiction and Location. Customer and RITHM agree that: (i) any arbitration will occur in Salt Lake County, Utah USA (ii) arbitration will be conducted confidentially in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by a single arbitrator appointed in accordance with said Rules; (iii) all arbitration proceedings, including but not limited to, any hearing or hearings, will be conducted in English; and (iv) judgment on the award may be entered by any court having jurisdiction.
      • 12.3.3.2. Authority of Arbitrator. As limited by this Agreement and applicable ICC rules, the arbitrator will have: (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, and (ii) the authority to grant any remedy that would otherwise be available in court including reasonable attorneys’ fees. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
      • 12.3.3.3. Rules of ICC. The rules of, and additional information about, the ICC are available on the ICC website at iccwbo.org/dispute-resolution-services/arbitration/, as may be updated from time to time. By agreeing to be bound by this Agreement, Customer acknowledges and agrees that (i) Customer has read and understands the rules of the ICC or (ii) Customer waives its opportunity to read the rules of the ICC and any claim that the rules of the ICC are unfair or should not apply for any reason.

13. GENERAL

  • 13.1. Independent Contractor. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
  • 13.2. Entire Agreement; Amendment; Waiver. With respect to its subject matter, this Agreement and all Order Forms issued pursuant to this Agreement represent the parties’ entire agreement and supersede all prior agreements, understandings and representations, written or oral, between the parties. This Agreement may not be amended except in writing signed by the party to be bound. The failure of a party to require performance of any provision of this Agreement will in no manner affect its right to enforce the provision.
  • 13.3. Force Majeure. Neither party is responsible for any delays, delivery failures, or damage caused by a Force Majeure event.
  • 13.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Further, the waivers set forth in Section 12.2 are severable from the other provisions of this Agreement and will remain valid and enforceable except as prohibited by applicable law.
  • 13.5. Compliance
    • 13.5.1. Export Compliance. Export laws and regulations of the United States and other relevant local export laws and regulations apply to the Services. Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs, and/or materials resulting from the Services (or a direct product thereof) will be exported, directly or indirectly in violation of these laws or will be used for any purpose prohibited by these laws. Customer acknowledges that the Services are designed with capabilities for Customer and Users to access the Services without regard to geographic location and to transfer or move Customer Data. Customer is solely responsible for the authorization and management of the Services as well as the export control and geographic transfer of Customer Data.
    • 13.5.2. Anti-Bribery and Anti-Corruption. Customer and RITHM will each comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries, to the extent applicable. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of RITHM’s employees or agents in connection with this Agreement. If Customer learns of any violation of the foregoing restriction, Customer will use reasonable efforts to promptly notify RITHM’s legal department in writing.
  • 13.6. Notices. Any notice, request, or communication required or permitted to be given under this Agreement will be in writing and will be effective upon the earliest of: (i) actual receipt by the other party; or (ii) two (2) business days after deposit with a nationally recognized overnight courier service, and addressed in each case as follows:
    • If to Customer: At the corresponding address stated on the Order Form.
    • If to RITHM:
        RITHM CORP.
        ATTN: Legal Department
        500 S 500 W
        Suite 1
        LINDON, UT 84042
        Email: legal@rithmXO.com
    A party may change its notice address by notice in accordance with this subsection.
  • 13.7. Governing Law. This Agreement and Customer’s access to and use of the Services will be governed by and construed in accordance with the laws of the State of Utah, without regard to conflict of law principles. Customer hereby irrevocably consents to the jurisdiction and venue of the federal and state courts located in Salt Lake County, Utah with respect to any Dispute between the parties that is not subject to arbitration under this Agreement.
  • 13.8. Additional Terms. If Customer submits a purchase order or similar document in connection with Customer’s subscription for the Services (other than an Order Form in a form approved by RITHM), any terms or conditions contained in Customer’s purchase order or other document or otherwise proposed by Customer are objected to and rejected by RITHM without a need of further notice of objection or rejected and will not be binding on RITHM unless specifically agreed to in writing by an authorized officer of RITHM. Any conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order, or other document submitted by Customer will be resolved in favor of the terms and conditions in this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (i) the applicable Order Form; (ii) this Agreement; and (iii) the Documentation. Customer agrees that any cause of action arising out of or related to the Services must commence within one (1) year after the first occurrence of the cause of action; otherwise, such cause of action is permanently barred.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date specified above.