RISE BUILDINGS SERVICES AGREEMENT
This Rise Buildings Services Agreement (this “Agreement”) is between the customer as described in the Order (the “Customer”) and Rise Buildings, LLC, a Delaware limited liability company (“Rise”). This Agreement, together with the Order to which this Agreement is attached, governs the terms and conditions of the license granted by Rise to Customer for the services described in this Agreement and the Order, which may also be described as a “Proposal for Services.” Certain terms used herein are defined in Section 11.5.
1. Services.
1.1 Services. Subject to and conditioned on Customer’s and Customer’s Authorized Users’ compliance with the terms and conditions of this Agreement, Rise hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the service offering described in the Order (the “Services”) and such Rise Materials as Rise may supply or make available to Customer, solely by and through its Authorized Users, in accordance with the terms and conditions of this Agreement. Rise is providing the Services and the Rise Materials to Customer on a nonexclusive basis. Rise reserves all rights not expressly granted to Customer in this Agreement. Rise reserves the right, in its sole discretion, to make any changes to the Services and the Rise Materials that it deems necessary or useful in its sole discretion.
1.2 Suspension or Termination of Services. Rise may suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services or Rise Materials without incurring any resulting obligation or liability, if: (a) Rise receives a judicial or other governmental demand, order, or request that expressly or by reasonable implication requires Rise to do so; or (b) Rise has reason to believe that: (i) Customer or its Authorized User(s) have failed to comply with any material term of this Agreement or Rise’s EULA or accessed or used the Services and the Rise Materials beyond the scope of the rights granted or for a purpose not authorized under this Agreement or Rise’s EULA or in any manner that does not comply with any material instruction or requirement of the specifications set forth in the Order; (ii) Customer or its Authorized User(s) are, have been, or are likely to become involved in fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.2 does not limit any of Rise’s other rights or remedies, whether at law, in equity, or under this Agreement.
1.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services or Rise Materials except as expressly permitted by this Agreement. Customer shall not, and shall not permit any other person to: (a) copy, reproduce, modify, create derivative works based on, decompile, reverse compile, disassemble, or reverse engineer the Services or the Rise Materials or any portion thereof; (b) unbundle, sublicense, assign, transfer, display, distribute, rent, or lease the Services or the Rise Materials, or any portion thereof, to any third party; (c) attempt to learn, access, decompile, reverse engineer, or otherwise derive the source code, algorithms, structure, or ideas upon which the Services or the Rise Materials are based; (d) copy, change, delete, alter, breach, or hack any content or functionality within the Services or the Rise Materials; (e) use, introduce, or upload any device, software, routine, component, or code intended to damage, interfere with, harm, or permit unauthorized access to, or harvest or compile information on, the Services or the Rise Materials; (f) use the Services or the Rise Materials in any manner that misappropriates or infringes any intellectual property rights of Rise or any third party; (g) access or attempt to access any information or content of other users of the Services or the Rise Materials, or take any action that interferes with any other person’s use of the Services or the Rise Materials; (h) encourage any unlawful activities when using the Services or the Rise Materials, or post anything to the Rise Materials that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any person; (i) access or use the Services or the Rise Materials for competitive purposes or to develop software or services competitive with the Services or the Rise Materials; (j) decrypt, transfer, frame, display, or translate any part of the Services or the Rise Materials; or (k) grant any other person the right or access to do any of the foregoing.
1.4 Customer Obligations. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) all access to and use of the Services and Rise Materials directly or indirectly by or through the Customer Systems; (e) all actions or omissions of its Authorized Users that access or use the Services. Customer shall comply with all applicable laws, regulations, and rules, including, without limitation, privacy laws, in connection with its or its Authorized Users’ use of the Services. Customer acknowledges that Rise exercises no control over the content or use of Customer Data transferred by Customer or its Authorized Users by or through the Services. By transferring Customer Data by or through the Services, or soliciting Customer Data from its Authorized Users, Customer agrees that Rise may process, transmit and/or store Customer Data only to the extent necessary for, and for the sole purpose of, enabling Rise to perform its obligations under this Agreement. Customer shall not use or disclose any information or other material protected by privacy or intellectual property rights without first obtaining permission to do so. Customer agrees to obtain all consents and make all disclosures as required by law in connection with using and disclosing Customer Data. Rise may, in its sole discretion, immediately delete, destroy, or otherwise purge from the Services and/or the Rise Materials any Customer Data after processing such information.
1.5 Data Security. Rise will use commercially reasonable industry practices regarding information security, access, transmission, storage, encryption, and use of Customer Data and Confidential Information, and protection of Customer Data and Confidential Information.
1.6 Third Party Materials. In connection with the Services, Rise may from time to time make available third-party content, including data, information, applications and other products, services and/or materials, or provide links to third party websites or services, including through third party advertising (“Third Party Materials”). The Third Party Materials are subject to their own terms and conditions. Rise may from time to time make available payment functionality for Third Party Materials through a payment processor to process credit card and ACH payments. Customer and its Authorized Users shall be liable for all charges and fees related to any such payments. Rise is not liable for, and will not have any liability to any person with respect to, any Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof, or any fees or charges incurred by Customer or its Authorized Users in connection thereto.
2. Fees; Taxes; Payment Terms. Customer shall pay Rise the non-refundable fees (“Fees”) as set forth in the Order. Except as otherwise specifically set forth in the Order, Customer shall pay all Fees due within thirty (30) days of the date of the invoice provided by Rise to Customer. For the avoidance of doubt, Rise’s implementation process will only commence upon receipt of payment of the initial invoice from Customer. If Customer fails to make any payment when due, and in addition to all other remedies that may be available, interest shall accrue on such past due amount(s) at the rate of 1.5% per month compounded monthly, and Customer shall reimburse Rise for all collection costs incurred by Rise, including attorneys’ fees, court costs and collection agency fees. Customer is liable for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Rise’s income.
3. Intellectual Property Rights.
3.1 Services and Rise Materials. As between Rise and Customer, all right, title, and interest in and to the Rise Materials, including all intellectual property rights therein, are and will remain with Rise. Customer has no right, license, or authorization with respect to any of the Rise Materials except as expressly set forth in this Agreement. All other rights in and to the Rise Materials are expressly reserved by Rise. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Rise an assignment of all right, title, and interest in and to the Aggregated Statistics, including all intellectual property rights relating thereto. Rise may use any Aggregated Statistics for any business purpose in its sole discretion. Customer grants Rise a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services and the Rise Materials any suggestions, enhancements, recommendations, corrections, or other feedback provided by Customer or its Authorized Users relating to Rise’s operations, the Services, or the Rise Materials.
3.2 Customer Data. As between Customer and Rise, Customer is and will remain the sole and exclusive owner of all right, title, and interest, including all intellectual property rights, in and to all Customer Data. Customer hereby grants to Rise a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Rise to provide the Services to Customer.
4. Confidentiality. From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, all Rise Materials and the terms of this Agreement are the Confidential Information of Rise. Confidential Information does not include information that, at the time of disclosure was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement. The Receiving Party shall: (x) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; provided, a Receiving Party may share a copy of this Agreement with its Representatives who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement and who are bound by confidentiality obligations; (y) safeguard the Confidential Information from unauthorized use, access, or disclosure; and (z) ensure its Representatives’ compliance with, and be liable for any of its Representatives’ non-compliance with, the terms of this Section 4. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required by law, provided that the Receiving Party shall first provide the Disclosing Party with (i) prompt notice of such requirement so that the Disclosing Party may seek a protective order or other remedy and (ii) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. Each party agrees that the other party may use such party’s name, logo, and/or trademarks in promotional and marketing materials (including public-facing materials such as a website) in connection with promoting and marketing the business relationship between the parties and the Services licensed hereunder. For purposes of this Section 4, “Representatives” means, with respect to a party, that party’s and its affiliates’ employees, officers, directors, agents, independent contractors, and advisors.
5. Term and Termination. The initial term of this Agreement begins on the date set forth in the Order (the “Effective Date”) and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the duration provided in the Order, or, if such period is not provided, until one year from the Effective Date (such total period the “Term”). In addition to any other express termination right set forth elsewhere in this Agreement: (a) Rise may terminate this Agreement, effective upon written notice to Customer, if Customer breaches any of its obligations under Section 1.4 or Section 4; (b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach is incapable of cure or, being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and (c) Customer may terminate this Agreement for convenience, effective upon 60 days after Customer provides written notice to Rise; provided, that, in the case of termination pursuant to clause (c) of this Section 5, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees on receipt of Rise’s invoice therefor. The rights and obligations set forth in Sections 1.3, 1.6, and 2 through 11 survive the expiration or termination of this Agreement.
6. Service Levels; Limited Warranty.
6.1 Service Level. The Services will be provided in accordance with the service levels described on Schedule 1.
6.2 Equipment. Rise warrants to Customer that for a period of one (1) year from the date of shipment of any equipment (“Equipment Warranty Period”), such equipment will be free from significant defects in material and workmanship. The Equipment Warranty Period does not apply where such equipment has been (i) subjected to abuse, misuse, neglect, accident, improper testing, improper installation, improper storage, improper handling, or use contrary to any instructions issued by Rise, (ii) used with any third party product, hardware, or product that has not been previously approved in writing by Rise, or (iii) reconstructed, repaired, or altered by persons other than Rise or its authorized representatives. During the Equipment Warranty Period, Customer shall immediately notify Rise of any alleged claim or defect in such equipment. Rise may, at its sole option, elect to repair or replace, at its expense, any defective equipment or issue a credit or refund to Customer the price of such defective equipment (less any applicable discounts, rebates, or credits). The foregoing sentence represents Customer’s sole and exclusive remedy and Rise’s entire liability for any breach of the limited warranty set forth in this Section 6.2.
6.3 Installation. If any equipment is installed by Rise, Rise warrants to Customer that such equipment will be installed in a workmanlike manner, and that the installation of such equipment will be free from defects in workmanship for a period of one (1) year from the date such equipment is installed by Rise (“Installation Warranty Period”). The Installation Warranty Period does not apply where such installed equipment has been (i) subjected to abuse, misuse, neglect, accident, improper testing, improper storage, improper handling, or use contrary to any instructions issued by Rise, (ii) used with any third party product, hardware, or product that has not been previously approved in writing by Rise, or (iii) reconstructed, repaired, or altered by persons other than Rise or its authorized representatives. During the Installation Warranty Period, Customer shall immediately notify Rise of any non-conformity of installation. Rise may, at its sole option and at its expense, re-perform, or otherwise correct the installation service so that it conforms to the limited warranty provided herein. The foregoing sentence represents Customer’s sole and exclusive remedy and Rise’s entire liability for any breach of the limited warranty set forth in this Section 6.3.
6.4 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6, ALL SERVICES AND RISE MATERIALS ARE PROVIDED “AS IS” AND RISE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND RISE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, RISE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RISE MATERIALS, CUSTOMER’S OR ANY AUTHORIZED USER’S USE THEREOF, OR ANY PRODUCTS OR RESULTS THEREFROM, OR ANY CUSTOMER DATA, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION; ACHIEVE ANY INTENDED RESULT; BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; OR COMPLY WITH ANY LAW, REGULATION, OR RULE, INCLUDING, WITHOUT LIMITATION, PRIVACY LAWS.
7. Representations, Warranties and Agreements of Agent (if applicable). In the event that an agent is entering into and executing this Agreement on behalf of Customer (such agent identified on the Order, the “Agent”), the Agent represents, warrants, and agrees as follows:
7.1 Agent is entering into this Agreement on behalf of Customer identified on the Order. Agent is duly organized, validly existing, and in good standing under the laws of the state of its organization. Agent has full power, authority, and legal right to execute, deliver, and perform this Agreement. The execution, delivery, and performance of this Agreement do not and will not (a) require any consent or approval from any person, (b) violate any provisions of any law or government order, or (c) conflict with, result in a breach of, or constitute a default under, the organizational or governing documents of Agent or any instrument to which Agent is a party or by which it or any of its property is bound.
7.2 Agent has entered into an agency agreement with Customer, and such agency agreement (i) is in full force and effect, (ii) permits Agent to enter into this Agreement on behalf of Customer, and (iii) contractually obligates Customer to assume the agreements, covenants, obligations, and liabilities of Customer set forth in this Agreement. Agent is, and will continue to be during the Term, duly authorized and empowered, and has all requisite and contractual authority, to enter into this Agreement on behalf of Customer and to bind Customer in connection with all agreements, covenants, obligations, and liabilities under the Agreement. Upon execution of this Agreement by Agent on behalf of Customer, this Agreement constitutes a valid and binding obligation of Customer and Agent, enforceable against Customer and Agent in accordance with its terms.
7.3 Agent has entered into this Agreement solely in its capacity as agent for the person identified as Customer on the Order. All agreements, covenants, obligations, and liabilities of Customer under this Agreement shall be the agreements, covenants, obligations, and liabilities of the person identified as Customer on the Order. In the event of any breach of any of the representations, warranties, or agreements by Agent set forth in Section 7.2, Agent shall be deemed to be Customer for purposes of this Agreement and shall be liable for all such agreements, covenants, obligations, and liabilities of Customer under this Agreement as if Agent had entered into this Agreement in such capacity.
7.4 Agent agrees to promptly notify Rise of (i) any actual or foreseeable breach of any of its representations, warranties, or agreements in this Section 7, (ii) any termination or expiration of the contractual authority to act on behalf of Customer with respect to this Agreement, and (iii) any other event or circumstance that could have a material effect on the performance of Customer’s agreements, covenants, obligations, and liabilities under this Agreement.
7.5 The representations, warranties, and agreements made in this Section 7 are a material inducement to Rise to enter into this Agreement. Agent acknowledges and agrees that Rise is relying upon the representations, warranties, and covenants set forth in this Section 7 in entering into this Agreement. The representations, warranties, and agreements set forth in this Section 7 are true and correct as of the Effective Date, and shall remain true and correct at all times during the Term. The representations, warranties, and agreements made in this Section 7 shall bind any successor agent of Customer. Following any termination or expiration of the contractual authority of any agent to act on behalf of Customer with respect to this Agreement and the appointment of any new agent, Customer agrees that it will cause any successor agent to promptly confirm and affirm in writing the representations, warranties, and agreements contained in this Section 7.
8. Indemnification.
8.1 Indemnification by Rise. Rise shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, penalties, fines, costs, and expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance provider (“Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third Party Claim”) that the Services or Rise Materials infringe or misappropriate such third party’s intellectual property rights; provided that Customer promptly notifies Rise in writing of the claim, cooperates with Rise, and allows Rise, at its election, sole authority to control the defense and settlement of such claim; provided that Rise may (a) modify or replace the Services or the Rise Materials or component or part thereof, to make it non-infringing or obtain the right for Customer to continue use or (b) terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 8.1 will not apply to the extent that the alleged infringement arises from (i) use of the Services or the Rise Materials in combination with data, software, hardware, equipment, or technology not provided by Rise or authorized by Rise in writing; (ii) modifications to the Services or the Rise Materials not made by Rise; (iii) Customer Data; or (iv) Third Party Materials. This Section 8.1 states Rise’s sole liability to Customer, and Customer’s exclusive remedy against Rise, for any type of claim described in this Section 8.1.
8.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Rise’s option, defend Rise from and against any Losses resulting from (a) any Third Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates any third party’s intellectual property rights or violates any law, regulation, or rule, including, without limitation, privacy laws, and (b) any Third Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct or (ii) use of the Services or the Rise Materials in a manner not authorized by this Agreement; provided that Customer may not settle any Third Party Claim against Rise unless Rise consents to such settlement, and further provided that Rise will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability. IN NO EVENT WILL RISE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER RISE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. RISE WILL NOT BE LIABLE FOR THE CONTENT OR USE OF ANY CUSTOMER DATA. IN NO EVENT WILL THE AGGREGATE LIABILITY OF RISE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY RISE FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT IN WHICH LIABILITY AROSE.
10. Insurance. At all times during the Term of this Agreement, Rise shall maintain and carry, at its sole expense, insurance coverage in the types and amounts set forth on Schedule 2.
11. Miscellaneous.
11.1 Entire Agreement; Amendment; Waiver; Severability. This Agreement (including the Order and all exhibits, schedules, and other documents attached to this Agreement) constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No delay or omission by either party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the party waiving its rights. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.2 Assignment; Binding Effect; No-Third Party Beneficiaries. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Rise’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any change of control, merger, consolidation, or reorganization involving Customer or any affiliate or parent company of Customer will be deemed to be an assignment and delegation for which Rise’s prior written consent is required. No assignment or delegation will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment or delegation in violation of this Section 11.2 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Except as expressly set forth in this Agreement, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy.
11.3 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial; Relief. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction). Any legal suit, action, or proceeding arising out of or based upon this Agreement may be instituted exclusively in the federal courts of the United States of America or the courts of the State of Illinois in each case located in Chicago, Cook County, Illinois, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the parties hereby acknowledges that any breach by it of its obligations under this Agreement would cause substantial and irreparable damage to the other party, and that money damages and the indemnity protections provided herein would be inadequate remedies therefor, and accordingly, acknowledges and agrees that the other party shall be entitled to seek an injunction or specific performance to prevent or remedy the breach of such obligations (in addition to all other rights and remedies that may be available).
11.4 Counterparts; Notice; Interpretation. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute a single agreement. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature), or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. Any notices required or given hereunder must be in writing. Notices by facsimile or email are deemed given and received upon confirmation of transmission). The Order, exhibits, schedules and attachments referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein, and each of them is deemed incorporated into this Agreement by this reference. The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, any individual or any corporation, limited liability company, partnership, trust, or other entity.
11.5 Definitions. The following capitalized terms used in this Agreement are defined as follows:
(a) “Authorized User” means (i) Customer’s employees and other personnel authorized by Customer and (ii) all persons authorized by Customer to access and use the Services through Customer’s account under this Agreement who are residents, tenants, or occupants of the property identified in the Order, and all such Authorized Users shall be subject to the terms of Rise’s EULA and required to be agreed to by such person before accessing or using the Services or the Rise Materials.
(b) “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services and/or the Rise Systems or that incorporates or is derived from the processing of such information, data, or content by or through the Services and/or the Rise Systems. For the avoidance of doubt, Customer Data does not include Aggregated Statistics or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
(c) “Aggregated Statistics” means data and information related to Customer’s and its Authorized User’s use of the Services that is used by Rise in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(d) “Rise Materials” means the Rise Systems, the specifications set forth in the Order and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Rise in connection with the Services or otherwise comprise or relate to the Services or Rise Systems. Rise Materials include Aggregated Statistics and any information, data, or other content derived from Rise’s monitoring of Customer’s access to or use of the Services.
(e) “Rise Systems” means the information technology infrastructure used by or on behalf of Rise in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Rise or through the use of third-party services, and all new versions, updates, revisions, improvements, and modifications of the foregoing.
(f) “Rise’s EULA” means the end-user license agreement available at www.risebuildings.com/terms-of-service/, which sets forth the terms and conditions of an Authorized User’s permitted use of the Services and the Rise Materials.
SCHEDULE 1
SERVICE LEVEL
1. Service Level.
Subject to the terms and conditions of the Agreement, Rise will use commercially reasonable efforts to make the Services Available (as defined below) at least 99% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the specifications set forth in the Order.
For purposes of calculating the Availability Requirement, no period of downtime, inoperability, or degradation of the Services will be included in such calculation to the extent that such downtime, inoperability, or degradation is due, in whole or in part, to any of the following (“Exceptions”): (a) act or omission by Customer or any Authorized User, or access to or use of the Services by Customer or any Authorized User, that does not strictly comply with this Agreement or Rise’s EULA and the specifications set forth in the Order; (b) Customer’s failure to meet its obligations in Section 1.4 (Customer Obligations) in the Agreement; (c) Customer’s or its Authorized User’s lack of Internet connectivity; (d) occurrence and continuance of any event or circumstance beyond Rise’s reasonable control, including disruption or slow speed of the Internet, break-downs of security, or introduction of computer viruses (and the like) by third parties, labor disputes, government requirement or shutdown, passage of law, war, terrorism, act of God, epidemics, pandemics, and disease; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Rise pursuant to this Agreement; (f) Scheduled Downtime (defined below); or (g) disabling, suspension, or termination of the Services pursuant to Section 1.2 of the Agreement. “Service Level Failure” means a material failure of the Services to meet the Availability Requirement.
2. Service Level Failures and Remedies.
In the event of a Service Level Failure, Rise will issue a credit to Customer in the amount of 2% of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred. Notwithstanding anything in this Schedule or the Agreement to the contrary, Rise has no obligation to issue a Service Credit in connection with a Service Level Failure unless Customer reports the Service Level Failure to Rise promptly after becoming aware of it and Customer requests an applicable Service Credit by written notice to Rise within 30 days of the start of the Service Level Failure. Any undisputed Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred; provided, if such Fees for the Service Period were pre-paid, Rise shall issue a refund to Customer within 30 days of the final resolution of any claim made by Customer with respect to a Service Credit. This paragraph sets forth Rise’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
3. Scheduled Downtime.
Rise will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Rise Systems between the hours of 12:01 a.m. and 5:00 a.m. Central Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Rise Systems (“Scheduled Downtime”).
SCHEDULE 2
INSURANCE
During the Term, Rise shall procure and maintain insurance issued by financially sound and reputable insurers that includes, at a minimum, the following types and limits of insurance:
Type of Insurance | Limits |
---|---|
General Liability | $2,000,000 Each Occurrence/$4,000,000 Aggregate |
Hired/Non-Owned Auto | $1,000,000 |
Umbrella Liability | $5,000,000 |
Worker’s Compensation | $1,000,000/$1,000,000/$1,000,000 |
Technology Errors & Omissions/Professional Liability | $2,000,000 |
Cyber Liability | $2,000,000 |
Upon request, Rise will deliver to Customer certificates of insurance as evidence of all insurance coverages under this Schedule 2.