Rill Terms of Service
Last updated: February 2023
Welcome, and thank you for your interest in Rill Data, Inc. (“Rill”) and our website and services at Rilldata.com, along with the related websites, networks, applications, and other services provided by Rill (collectively, the “Rill Services”). These Terms of Service are a legally binding contract between you (“Customer”) and Rill regarding your use of the Rill Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE RILL SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE RILL SERVICES, AGREES TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”). If Customer is not eligible, or does not agree to the Terms, then Customer does not have Rill’s permission to use the Rill Services. CUSTOMER’S USE OF THE RILL SERVICES, AND RILL’S PROVISION OF THE RILL SERVICES TO CUSTOMER, CONSTITUTES AN AGREEMENT BY RILL AND BY CUSTOMER TO BE BOUND BY THESE TERMS.
1. THE SERVICE.
1.1 Service Description. The Rill Service is a fully managed cloud offering for operational analytics. The scope of the Service and any additional restrictions on use shall be set forth in an applicable Order. As used in this Agreement, the “Service” means the Rill Service selected by Customer in an Order, and as further described in the user documentation provided with the Service (the “Documentation”).
1.2 Modification of the Service. The Service is subject to modification from time to time at Rill’s sole discretion. Rill will provide Customer prior notice of any material modifications
1.3 Access to the Service. During the Term (defined below), Customer may access and use the Service in accordance with the terms and conditions of this Agreement and the Documentation solely for its internal business purposes. Use of and access to the Service is permitted only by personnel of Customer designated by Customer (“AuthorizedUsers”) including employees and contractors of Customer. Customer shall be responsible for compliance by each Authorized User with all of the terms and conditions of this Agreement. Third party technology that may be made available with the Service is specified in the Documentation or in the applicable help, notices, about, or source files, or Order, as applicable ("Third Party Software"). Customer’s right to use Third Party Software is governed by the terms of the license agreement specified for such Third Party Software and not by this Agreement. Rill reserves the right to suspend Customer’s access to the Service upon notice to Customer: (a) for scheduled or emergency maintenance, or (b) in the event Customer is in breach of this Agreement.
1.4 Trial Credits. Rill may offer Customer promotional credits or other free use of the Service (“Trial Credits”). If Customer’s usage exceeds Customer’s allotment of Trial Credits (as set forth on an applicable Order), then Customer shall pay for such excess use in accordance with Rill’s then standard fees for such use. Trial Credits have no cash value, are non-transferrable and non-refundable. The Term of any such free trial shall be set forth in an applicable Order.
1.5 Self-Service Data Sharing. The Service includes the capability for Customer, in its sole discretion, to share any data, content, information, or data files of any type that are uploaded by or on behalf of Customer to the Service (“Customer Data”) with other parties, (“External Users”) to access such data through read-only accounts on the Service (“Read Only Accounts”) solely to consume Customer Data shared by Customer; provided that: (a) Customer shall be responsible for paying for any usage of the Read Only Accounts in accordance with Rill’s then standard fees for such use; (b) External Users shall be prohibited from uploading any data into the Read Only Accounts; (c) Customer represents that it has the right to share with Rill any personal information about External Users that Customer provides to Rill; (d) Customer shall be responsible for any acts or omissions on the part of External Users in their use of the Read Only Accounts as if they were acts or omissions of Customer; and (e) Rill may collect information about External Users’ use of and access to the Service and Customer Data (including identifying External User in connection with such information) and share it with Customer. For the avoidance of doubt, it is Customer’s sole responsibility to evaluate any risks related to its sharing of Customer Data with External Users and Rill has no control over, and will have no liability for, any acts or omissions of any External User with respect to Customer’s sharing of Customer Data. At all times Customer remains responsible for its Customer Data as set forth in the Agreement.
1.6 Beta Terms. Rill may make available to Customer certain products, features, and services, that are not yet generally available, including such products, features, and services that are labeled as “pre-release” or “beta” (collectively, “Beta Services”). Customer may access and use the Beta Services solely for its internal evaluation purposes and in accordance with this Agreement and any supplemental terms (“Beta Terms”) provided upon access to the Beta Services. In the event of any conflict between this Agreement and the Beta Terms, the Beta Terms shall govern and control solely with respect to the Beta Services.
2. Additional Services. If Customer purchases professional services, consulting services, or any other services (“Additional Services”), the scope of such Additional Services will be as set forth in an applicable Order. Customer will pay Rill at the rates set forth in the applicable Order (or, if not specified, at Rill’s then-standard rates) for such Additional Services. If applicable, Customer will reimburse Rill for actual reasonable travel and lodging expenses approved in advance by Customer. Customer may use anything delivered as part of the Additional Services (collectively, "Deliverables") in support of authorized use of the Service and subject to the terms regarding Customer’s rights to use the Service set forth in this Agreement. Notwithstanding the foregoing, except for the limited use set forth in the preceding sentence, Rill will retain all rights, title, and interest in and to any Deliverables, as well as any other materials created by or on behalf of Rill pursuant to this Agreement, and any derivative, enhancement or modification thereof.
3. Support Services and Service Level Agreement. Subject to the terms and conditions of this Agreement, (a) Rill will provide to Customer technical support in accordance with its standard policies and procedures listed here (“Support Services”), and the Service Level Agreement ("SLA") as listed here shall apply to the Service.
4. Customer Responsibility
4.1 Restrictions on Use. Customer will not (and will not permit any third party to): (a) use the Service for any illegal purpose or in violation of any local, state, national, or international law; (b) violate any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (c) rent, lease, or otherwise permit third parties to use the Service or Documentation, except as otherwise expressly provided in this Agreement; (d) copy, distribute, relist, frame, or embed any part of the Service on any third party website or service; (e) use the Service on a standalone basis to provide services to third parties (e.g., as a service bureau); (f) use any web crawler, scraper, or other automated tool or process to access, monitor, analyze, or copy any part of the Service or any data, information, or content available through the Service; (g) use the Service for any benchmarking activity or in connection with the development of any competitive product; (h) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of the Service (except to the extent that applicable law prevents the prohibition of such activities); (i) use or access the Service in a manner that materially impacts or burdens Rill or Rill’s servers and other computer systems, or that interferes with Rill’s ability to make available any product or service to any third party; (j) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Service without permission; or (k) circumvent or disable any security or other technological features or measures of the Service.
4.2 Customer Obligations.
(a) In General. Customer represents and warrants that Customer’s use of the Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations, and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer further represents and warrants to Rill that Customer has sufficient rights in the Customer Data to grant the rights granted to Rill in Section 5.2 and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy, or other rights of any third party. Customer shall be responsible for any regulatory or compliance obligations (including security breach obligations) pertaining to Customer Data.
(b) Authorized User IDs and Passwords. Customer will require that all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Rill shall not have any liability under this Agreement for actions taken using Customer’s user IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any user who is no longer authorized to access the Service.
5. Customer Data
5.1 Customer Data. Customer shall be exclusively responsible for creating, modifying, entering, or reentering all Customer Data uploaded to the Service. For the avoidance of doubt, Customer Data shall not include any Rill Technology (as defined below). Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer will be responsible for providing all Customer Data to Rill and will provide such Customer Data in a format consistent with the requirements set forth in the Documentation (or as otherwise specified by Rill). Errors in loading Customer Data into the applicable Service may cause Customer Data to be rejected by the Service and Rill will have no responsibility for any related impact on Customer’s ability to access or use the Service. For the avoidance of doubt, Rill is not obligated to back up Customer Data, and such responsibility lies solely with Customer.
5.2 Ownership. As between the parties, except for the rights expressly granted in this Agreement, Customer or its licensors will retain all rights, title, and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided by Rill. Subject to the terms of this Agreement, Customer hereby grants to Rill a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary (i) to provide and improve the Service, (ii) to prevent or address service or technical problems under this Agreement, or (iii) as may be required by law or regulation.
5.3 Retrieval of Customer Data. During the Term, Rill may allow Customer to retrieve Customer Data from the Service by utilizing Rill’s data export features. It is Customer’s responsibility to retrieve Customer Data from the Service (at Rill’s then standard usage rate) prior to any termination or expiration of this Agreement. Rill has no obligation to archive or make available Customer Data after expiration or termination of this Agreement.
6. Privacy And Security
6.1 Data Privacy. Each party shall comply with Rill’s standard Customer Data Processing Addendum, listed here (“DPA”), which is incorporated herein by this reference. By each party’s acceptance and agreement to the terms and conditions of this Agreement, each party is deemed to have signed the DPA, including the Model Clauses as “Data exporter” in the case of Customer, and as “Data importer” in the case of Rill.
6.2 Security. Rill will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of, as further described in Rill’s standard Information Security Policy which Rill will provide upon request. However, Rill shall have no responsibility for errors in transmissions or any other causes beyond Rill’s reasonable control. Rill shall have no liability for any unauthorized access to or disclosure of Customer Data that is not the result of Rill's breach of this Section 6.2 (a "Third Party Data Breach").
7. Intellectual Property
7.1 Rill Technology. Customer agrees that Rill or its licensors retain all rights, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Service, all Documentation, any and all related and underlying technology and documentation, and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback (as defined in Section 7.2) that may be incorporated in any of the foregoing (collectively, “Rill Technology”). Except for the express limited rights set forth in this Agreement, no right, title, or interest in any Rill Technology is granted to Customer.
7.2 Feedback. Notwithstanding anything to the contrary herein, Rill may freely use and incorporate into Rill’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Service relating to Rill’s current or future products and/or services (“Feedback”).
7.3 Performance Data. Notwithstanding anything to the contrary herein, Customer agrees that Rill may store and collect certain diagnostic information about the routine operations of the Service (including, without limitation, its performance, accuracy, security, availability, usage rates, number of active users, and behavioral statistics) (“Performance Data”), and Rill may use Performance Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. Performance Data includes aggregated and anonymized data based upon other Performance Data, so long as such data does not reveal any personally identifiable information or personal data of any particular individual person and does not identify Customer.
7.4 Promotional Activities. Rill may use and display Customer’s name, logo, trademarks, and service marks on Rill’s website and in Rill’s marketing materials in connection with identifying Customer as a customer of Rill.
8. Confidentiality
8.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including business or financial affairs, such as financial results, business methods, pricing, competitor and product information, marketing, technical, employee, planning and all other information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). Rill’s Confidential Information includes but is not limited to the Service and all Rill Technology. Customer’s Confidential Information includes but is not limited to Customer Data.
8.2 Protection of Confidential Information. The Receiving Party will use Confidential Information of the Disclosing Party only for the purpose of exercising its rights and performing its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for such purposes and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3 Exceptions. The Receiving Party’s obligations under Section 8.2 (Protection of Confidential Information) with respect to any Confidential Information of the Disclosing Party will not apply to the extent such information: (a) was already known without restriction to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding, or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that, to the extent allowed by such law or by the order of a court of similar judicial or administrative body, the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8.4 Return or Destruction of Confidential Information. Upon the expiration or termination of the Agreement, or upon request at any other time, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this section.
8.5 Equitable Relief. The Receiving Party acknowledges that non-permitted use or disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such breach by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8.6 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement or any Order to anyone other than its attorneys, accountants, and other appropriate personnel except (a) as required by law, (b) pursuant to a press release mutually agreed upon by the parties in writing, or (c) in connection with a financing or a contemplated transfer of such party’s business permitted by Section (14.1) (Assignment) (provided that any third party to whom the terms of the Agreement are to be disclosed is bound by a confidentiality agreement at least as restrictive as this Section 8).
9. Payment
9.1 Payment Fees. All fees are as set forth in an applicable Order (“Fees”) and shall be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order.
9.2 Billing. Billing will be as set forth in an applicable Order. All payment obligations are non-cancelable, and Fees are non-refundable. Rill may charge Customer interest for any late payments in an amount of one and one-half percent (1.5%) per month or such lesser amount permitted by law.
9.3 Payment Disputes. Rill will not exercise its rights under Section 10.2 (Termination) or Section 10.5 (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
9.4 Taxes. The Fees do not include taxes. Customer is responsible for paying all taxes associated with its purchases hereunder other than taxes based on Rill's income. If Rill has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, Rill will invoice Customer and Customer will pay that amount unless Customer provides Rill with a valid tax exemption certificate authorized by the appropriate taxing authority.
10. Term and Termination
10.1 Term. These Terms are effective beginning when Customer accepts the Terms or first downloads, installs, access, or uses the Rill Services or an effective date specified on an Order form ("Order Form").
10.2. Termination for Convenience. Either party may terminate these Terms for any reason or for no reason by giving the other party written notice.
10.3. Termination for Material Breach. Either party may terminate these Terms if the other party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Rill may, without limitation to any of its other rights or remedies, suspend performance of the Rill Services until it receives all amounts due.
10.4 Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease use of and access to the applicable Service (including any related Rill Technology) and delete all copies of the Documentation, the Service passwords or access codes, and any other Rill Confidential Information in its possession. Following termination, Customer will have no further access to any Customer Data through the Service. Promptly following the expiration or termination of this Agreement Rill will delete the Customer Data. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
10.5 Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Rill reserves the right to suspend provision of the Service: (a) if Customer is overdue on a payment; (b) if Rill deems such suspension necessary as a result of Customer’s breach of Customer Responsibilities; (c) upon expiration of Customer’s Trial Credits; (d) if Rill reasonably determines suspension is necessary to avoid material harm to Rill or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Rill’s control; or (e) as required by law or at the request of governmental entities.
11. Warranty and Disclaimer
11.1 Limited Service Warranty. Rill warrants that the Service will operate in substantial conformity with the applicable Documentation. In the event of a breach of this warranty, Rill will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Customer, or if Rill determines such remedy to be impracticable, either party may terminate the applicable Order and Customer will receive a refund of any unused Fees Customer has pre-paid for the Service purchased under such Order. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity. Furthermore, this warranty will not apply to failures to conform to this Agreement or the Documentation to the extent such failure arises, in whole or in part, from (i) any use of the Service not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Service in combination with other products, equipment, software or data not supplied by Rill; or (iii) any modification of the Service by any person other than Rill or its authorized agents.
11.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 11.1 (LIMITED SERVICE WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11 (WARRANTY AND DISCLAIMER), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND DOCUMENTATION ARE PROVIDED “AS IS,” AND RILL MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RILL DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. RILL DOES NOT WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. RILL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, RILL MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD PARTY SOFTWARE. RILL ALSO DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARMS OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS.
12. Indemnification
12.1 Indemnification by Rill. Rill will defend Customer from and against any claim by a third party alleging that the Service, when used as authorized under this Agreement and in accordance with the Documentation, infringes such third party’s U.S. intellectual property rights and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Rill (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service is (or in Rill’s opinion is likely to be), the subject of a claim of infringement, Rill may, at Rill’s option: (a) procure the right for Customer to continue using the Service; (b) replace the Service with a non-infringing service which does not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate this Agreement. The foregoing indemnification obligation of Rill will not apply to the extent the applicable claim is attributable to: (i) the modification of the Service by any party other than Rill; (ii) the combination of the Service with products or processes not specified in the Documentation or provided by Rill; (iii) any unauthorized use of the Service; or (iv) any action arising as a result of Customer Data or any Third Party Software or other third party materials or components contained within the Service. THIS SECTION SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND RILL’S AND ITS SUPPLIERS’ SOLE LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
12.2 Indemnification by Customer. Customer will defend at its expense any suit brought against Rill arising from or relating to (a) Customer Data or any product or service offered by Customer in connection with or related to the Service, (b) any breach of Section 4 (Customer Responsibility), or (c) any and all claims brought by any External Users or arising from or relating to any acts or omissions by External Users in their use of the Read Only Accounts. Customer will indemnify and hold harmless Rill from and against any damages and costs awarded against Rill or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claims.
12.3 Indemnification Procedures. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified party shall promptly notify the indemnifying party in writing of the claim; (ii) the indemnifying party shall have sole control of the defense of any claim or suit; and (iii) upon request of the indemnifying party, the indemnified party shall provide all necessary cooperation at the indemnifying party’s expense. Notwithstanding the foregoing, failure to give notice shall not limit or otherwise reduce the indemnity provided for in this Agreement except to the extent that failure to give notice materially prejudices the rights of the indemnifying party. The indemnifying party is not permitted to settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
13. Limitation of Liability
13.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, RILL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR THE RILL SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF RILL WAS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL RILL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR THE RILL SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT PAID BY CUSTOMER TO RILL DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (b) $100.
13.3 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY RILL TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
14. GENERAL
14.1. Relationship. Rill will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of these Terms.
14.2. Assignability. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Rill. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
14.3. Subcontractors. Rill may utilize a subcontractor or other third party to perform its duties under these Terms so long as Rill remains responsible for all of its obligations under these Terms.
14.4. Consent to Electronic Communications. By using the Rill Services, Customer consents to receiving certain electronic communications from Rill. Customer agrees that any notices, agreements, disclosures, or other communications that Rill sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
14.5. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
14.6. Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
14.7. Arbitration. Any controversy or claim arising out of or relating to these Terms, or any breach of these Terms, will be determined by binding arbitration administered by, and in accordance with the rules of, the American Arbitration Association. Any arbitration will be conducted by three arbitrators (with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators) in San Francisco County, California and will be conducted (and the award rendered) in English. The award rendered by the arbitrators will be final and binding on the parties, and the arbitral judgment may be entered in any court of competent jurisdiction. Nothing in this Section 11.7 prevents either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
14.8. Waiver. The waiver by either party of any breach of any provision of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
14.9. Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Rill Services under these Terms is found to be illegal, unenforceable, or invalid, Customer’s right to use the Rill Services will immediately terminate.
14.10. Privacy Policy. Please read the Rill Privacy Policy carefully for information relating to our collection, use, storage, disclosure of personal information. The Rill Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
14.11. Entire Agreement. These Terms, together with the Rill Privacy Policy and any other agreement expressly incorporated by reference into these Terms, are the complete expression of the agreement between these parties regarding Customer’s use of the Rill Services. These Terms supersede, and these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not affect the validity of any agreements between the parties relating to professional services relating to the Rill Services that Rill may provide.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE RILL SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE RILL SERVICES, AGREES TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”). If Customer is not eligible, or does not agree to the Terms, then Customer does not have Rill’s permission to use the Rill Services. CUSTOMER’S USE OF THE RILL SERVICES, AND RILL’S PROVISION OF THE RILL SERVICES TO CUSTOMER, CONSTITUTES AN AGREEMENT BY RILL AND BY CUSTOMER TO BE BOUND BY THESE TERMS.
1. THE SERVICE.
1.1 Service Description. The Rill Service is a fully managed cloud offering for operational analytics. The scope of the Service and any additional restrictions on use shall be set forth in an applicable Order. As used in this Agreement, the “Service” means the Rill Service selected by Customer in an Order, and as further described in the user documentation provided with the Service (the “Documentation”).
1.2 Modification of the Service. The Service is subject to modification from time to time at Rill’s sole discretion. Rill will provide Customer prior notice of any material modifications
1.3 Access to the Service. During the Term (defined below), Customer may access and use the Service in accordance with the terms and conditions of this Agreement and the Documentation solely for its internal business purposes. Use of and access to the Service is permitted only by personnel of Customer designated by Customer (“AuthorizedUsers”) including employees and contractors of Customer. Customer shall be responsible for compliance by each Authorized User with all of the terms and conditions of this Agreement. Third party technology that may be made available with the Service is specified in the Documentation or in the applicable help, notices, about, or source files, or Order, as applicable ("Third Party Software"). Customer’s right to use Third Party Software is governed by the terms of the license agreement specified for such Third Party Software and not by this Agreement. Rill reserves the right to suspend Customer’s access to the Service upon notice to Customer: (a) for scheduled or emergency maintenance, or (b) in the event Customer is in breach of this Agreement.
1.4 Trial Credits. Rill may offer Customer promotional credits or other free use of the Service (“Trial Credits”). If Customer’s usage exceeds Customer’s allotment of Trial Credits (as set forth on an applicable Order), then Customer shall pay for such excess use in accordance with Rill’s then standard fees for such use. Trial Credits have no cash value, are non-transferrable and non-refundable. The Term of any such free trial shall be set forth in an applicable Order.
1.5 Self-Service Data Sharing. The Service includes the capability for Customer, in its sole discretion, to share any data, content, information, or data files of any type that are uploaded by or on behalf of Customer to the Service (“Customer Data”) with other parties, (“External Users”) to access such data through read-only accounts on the Service (“Read Only Accounts”) solely to consume Customer Data shared by Customer; provided that: (a) Customer shall be responsible for paying for any usage of the Read Only Accounts in accordance with Rill’s then standard fees for such use; (b) External Users shall be prohibited from uploading any data into the Read Only Accounts; (c) Customer represents that it has the right to share with Rill any personal information about External Users that Customer provides to Rill; (d) Customer shall be responsible for any acts or omissions on the part of External Users in their use of the Read Only Accounts as if they were acts or omissions of Customer; and (e) Rill may collect information about External Users’ use of and access to the Service and Customer Data (including identifying External User in connection with such information) and share it with Customer. For the avoidance of doubt, it is Customer’s sole responsibility to evaluate any risks related to its sharing of Customer Data with External Users and Rill has no control over, and will have no liability for, any acts or omissions of any External User with respect to Customer’s sharing of Customer Data. At all times Customer remains responsible for its Customer Data as set forth in the Agreement.
1.6 Beta Terms. Rill may make available to Customer certain products, features, and services, that are not yet generally available, including such products, features, and services that are labeled as “pre-release” or “beta” (collectively, “Beta Services”). Customer may access and use the Beta Services solely for its internal evaluation purposes and in accordance with this Agreement and any supplemental terms (“Beta Terms”) provided upon access to the Beta Services. In the event of any conflict between this Agreement and the Beta Terms, the Beta Terms shall govern and control solely with respect to the Beta Services.
2. Additional Services. If Customer purchases professional services, consulting services, or any other services (“Additional Services”), the scope of such Additional Services will be as set forth in an applicable Order. Customer will pay Rill at the rates set forth in the applicable Order (or, if not specified, at Rill’s then-standard rates) for such Additional Services. If applicable, Customer will reimburse Rill for actual reasonable travel and lodging expenses approved in advance by Customer. Customer may use anything delivered as part of the Additional Services (collectively, "Deliverables") in support of authorized use of the Service and subject to the terms regarding Customer’s rights to use the Service set forth in this Agreement. Notwithstanding the foregoing, except for the limited use set forth in the preceding sentence, Rill will retain all rights, title, and interest in and to any Deliverables, as well as any other materials created by or on behalf of Rill pursuant to this Agreement, and any derivative, enhancement or modification thereof.
3. Support Services and Service Level Agreement. Subject to the terms and conditions of this Agreement, (a) Rill will provide to Customer technical support in accordance with its standard policies and procedures listed here (“Support Services”), and the Service Level Agreement ("SLA") as listed here shall apply to the Service.
4. Customer Responsibility
4.1 Restrictions on Use. Customer will not (and will not permit any third party to): (a) use the Service for any illegal purpose or in violation of any local, state, national, or international law; (b) violate any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (c) rent, lease, or otherwise permit third parties to use the Service or Documentation, except as otherwise expressly provided in this Agreement; (d) copy, distribute, relist, frame, or embed any part of the Service on any third party website or service; (e) use the Service on a standalone basis to provide services to third parties (e.g., as a service bureau); (f) use any web crawler, scraper, or other automated tool or process to access, monitor, analyze, or copy any part of the Service or any data, information, or content available through the Service; (g) use the Service for any benchmarking activity or in connection with the development of any competitive product; (h) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of the Service (except to the extent that applicable law prevents the prohibition of such activities); (i) use or access the Service in a manner that materially impacts or burdens Rill or Rill’s servers and other computer systems, or that interferes with Rill’s ability to make available any product or service to any third party; (j) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Service without permission; or (k) circumvent or disable any security or other technological features or measures of the Service.
4.2 Customer Obligations.
(a) In General. Customer represents and warrants that Customer’s use of the Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations, and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer further represents and warrants to Rill that Customer has sufficient rights in the Customer Data to grant the rights granted to Rill in Section 5.2 and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy, or other rights of any third party. Customer shall be responsible for any regulatory or compliance obligations (including security breach obligations) pertaining to Customer Data.
(b) Authorized User IDs and Passwords. Customer will require that all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Rill shall not have any liability under this Agreement for actions taken using Customer’s user IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any user who is no longer authorized to access the Service.
5. Customer Data
5.1 Customer Data. Customer shall be exclusively responsible for creating, modifying, entering, or reentering all Customer Data uploaded to the Service. For the avoidance of doubt, Customer Data shall not include any Rill Technology (as defined below). Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer will be responsible for providing all Customer Data to Rill and will provide such Customer Data in a format consistent with the requirements set forth in the Documentation (or as otherwise specified by Rill). Errors in loading Customer Data into the applicable Service may cause Customer Data to be rejected by the Service and Rill will have no responsibility for any related impact on Customer’s ability to access or use the Service. For the avoidance of doubt, Rill is not obligated to back up Customer Data, and such responsibility lies solely with Customer.
5.2 Ownership. As between the parties, except for the rights expressly granted in this Agreement, Customer or its licensors will retain all rights, title, and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided by Rill. Subject to the terms of this Agreement, Customer hereby grants to Rill a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary (i) to provide and improve the Service, (ii) to prevent or address service or technical problems under this Agreement, or (iii) as may be required by law or regulation.
5.3 Retrieval of Customer Data. During the Term, Rill may allow Customer to retrieve Customer Data from the Service by utilizing Rill’s data export features. It is Customer’s responsibility to retrieve Customer Data from the Service (at Rill’s then standard usage rate) prior to any termination or expiration of this Agreement. Rill has no obligation to archive or make available Customer Data after expiration or termination of this Agreement.
6. Privacy And Security
6.1 Data Privacy. Each party shall comply with Rill’s standard Customer Data Processing Addendum, listed here (“DPA”), which is incorporated herein by this reference. By each party’s acceptance and agreement to the terms and conditions of this Agreement, each party is deemed to have signed the DPA, including the Model Clauses as “Data exporter” in the case of Customer, and as “Data importer” in the case of Rill.
6.2 Security. Rill will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of, as further described in Rill’s standard Information Security Policy which Rill will provide upon request. However, Rill shall have no responsibility for errors in transmissions or any other causes beyond Rill’s reasonable control. Rill shall have no liability for any unauthorized access to or disclosure of Customer Data that is not the result of Rill's breach of this Section 6.2 (a "Third Party Data Breach").
7. Intellectual Property
7.1 Rill Technology. Customer agrees that Rill or its licensors retain all rights, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Service, all Documentation, any and all related and underlying technology and documentation, and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback (as defined in Section 7.2) that may be incorporated in any of the foregoing (collectively, “Rill Technology”). Except for the express limited rights set forth in this Agreement, no right, title, or interest in any Rill Technology is granted to Customer.
7.2 Feedback. Notwithstanding anything to the contrary herein, Rill may freely use and incorporate into Rill’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Service relating to Rill’s current or future products and/or services (“Feedback”).
7.3 Performance Data. Notwithstanding anything to the contrary herein, Customer agrees that Rill may store and collect certain diagnostic information about the routine operations of the Service (including, without limitation, its performance, accuracy, security, availability, usage rates, number of active users, and behavioral statistics) (“Performance Data”), and Rill may use Performance Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. Performance Data includes aggregated and anonymized data based upon other Performance Data, so long as such data does not reveal any personally identifiable information or personal data of any particular individual person and does not identify Customer.
7.4 Promotional Activities. Rill may use and display Customer’s name, logo, trademarks, and service marks on Rill’s website and in Rill’s marketing materials in connection with identifying Customer as a customer of Rill.
8. Confidentiality
8.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including business or financial affairs, such as financial results, business methods, pricing, competitor and product information, marketing, technical, employee, planning and all other information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). Rill’s Confidential Information includes but is not limited to the Service and all Rill Technology. Customer’s Confidential Information includes but is not limited to Customer Data.
8.2 Protection of Confidential Information. The Receiving Party will use Confidential Information of the Disclosing Party only for the purpose of exercising its rights and performing its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for such purposes and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3 Exceptions. The Receiving Party’s obligations under Section 8.2 (Protection of Confidential Information) with respect to any Confidential Information of the Disclosing Party will not apply to the extent such information: (a) was already known without restriction to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding, or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that, to the extent allowed by such law or by the order of a court of similar judicial or administrative body, the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8.4 Return or Destruction of Confidential Information. Upon the expiration or termination of the Agreement, or upon request at any other time, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this section.
8.5 Equitable Relief. The Receiving Party acknowledges that non-permitted use or disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such breach by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8.6 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement or any Order to anyone other than its attorneys, accountants, and other appropriate personnel except (a) as required by law, (b) pursuant to a press release mutually agreed upon by the parties in writing, or (c) in connection with a financing or a contemplated transfer of such party’s business permitted by Section (14.1) (Assignment) (provided that any third party to whom the terms of the Agreement are to be disclosed is bound by a confidentiality agreement at least as restrictive as this Section 8).
9. Payment
9.1 Payment Fees. All fees are as set forth in an applicable Order (“Fees”) and shall be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order.
9.2 Billing. Billing will be as set forth in an applicable Order. All payment obligations are non-cancelable, and Fees are non-refundable. Rill may charge Customer interest for any late payments in an amount of one and one-half percent (1.5%) per month or such lesser amount permitted by law.
9.3 Payment Disputes. Rill will not exercise its rights under Section 10.2 (Termination) or Section 10.5 (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
9.4 Taxes. The Fees do not include taxes. Customer is responsible for paying all taxes associated with its purchases hereunder other than taxes based on Rill's income. If Rill has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, Rill will invoice Customer and Customer will pay that amount unless Customer provides Rill with a valid tax exemption certificate authorized by the appropriate taxing authority.
10. Term and Termination
10.1 Term. These Terms are effective beginning when Customer accepts the Terms or first downloads, installs, access, or uses the Rill Services or an effective date specified on an Order form ("Order Form").
10.2. Termination for Convenience. Either party may terminate these Terms for any reason or for no reason by giving the other party written notice.
10.3. Termination for Material Breach. Either party may terminate these Terms if the other party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Rill may, without limitation to any of its other rights or remedies, suspend performance of the Rill Services until it receives all amounts due.
10.4 Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease use of and access to the applicable Service (including any related Rill Technology) and delete all copies of the Documentation, the Service passwords or access codes, and any other Rill Confidential Information in its possession. Following termination, Customer will have no further access to any Customer Data through the Service. Promptly following the expiration or termination of this Agreement Rill will delete the Customer Data. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
10.5 Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Rill reserves the right to suspend provision of the Service: (a) if Customer is overdue on a payment; (b) if Rill deems such suspension necessary as a result of Customer’s breach of Customer Responsibilities; (c) upon expiration of Customer’s Trial Credits; (d) if Rill reasonably determines suspension is necessary to avoid material harm to Rill or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Rill’s control; or (e) as required by law or at the request of governmental entities.
11. Warranty and Disclaimer
11.1 Limited Service Warranty. Rill warrants that the Service will operate in substantial conformity with the applicable Documentation. In the event of a breach of this warranty, Rill will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Customer, or if Rill determines such remedy to be impracticable, either party may terminate the applicable Order and Customer will receive a refund of any unused Fees Customer has pre-paid for the Service purchased under such Order. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity. Furthermore, this warranty will not apply to failures to conform to this Agreement or the Documentation to the extent such failure arises, in whole or in part, from (i) any use of the Service not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Service in combination with other products, equipment, software or data not supplied by Rill; or (iii) any modification of the Service by any person other than Rill or its authorized agents.
11.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 11.1 (LIMITED SERVICE WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11 (WARRANTY AND DISCLAIMER), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND DOCUMENTATION ARE PROVIDED “AS IS,” AND RILL MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RILL DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. RILL DOES NOT WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. RILL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, RILL MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD PARTY SOFTWARE. RILL ALSO DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARMS OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS.
12. Indemnification
12.1 Indemnification by Rill. Rill will defend Customer from and against any claim by a third party alleging that the Service, when used as authorized under this Agreement and in accordance with the Documentation, infringes such third party’s U.S. intellectual property rights and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Rill (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service is (or in Rill’s opinion is likely to be), the subject of a claim of infringement, Rill may, at Rill’s option: (a) procure the right for Customer to continue using the Service; (b) replace the Service with a non-infringing service which does not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate this Agreement. The foregoing indemnification obligation of Rill will not apply to the extent the applicable claim is attributable to: (i) the modification of the Service by any party other than Rill; (ii) the combination of the Service with products or processes not specified in the Documentation or provided by Rill; (iii) any unauthorized use of the Service; or (iv) any action arising as a result of Customer Data or any Third Party Software or other third party materials or components contained within the Service. THIS SECTION SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND RILL’S AND ITS SUPPLIERS’ SOLE LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
12.2 Indemnification by Customer. Customer will defend at its expense any suit brought against Rill arising from or relating to (a) Customer Data or any product or service offered by Customer in connection with or related to the Service, (b) any breach of Section 4 (Customer Responsibility), or (c) any and all claims brought by any External Users or arising from or relating to any acts or omissions by External Users in their use of the Read Only Accounts. Customer will indemnify and hold harmless Rill from and against any damages and costs awarded against Rill or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claims.
12.3 Indemnification Procedures. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified party shall promptly notify the indemnifying party in writing of the claim; (ii) the indemnifying party shall have sole control of the defense of any claim or suit; and (iii) upon request of the indemnifying party, the indemnified party shall provide all necessary cooperation at the indemnifying party’s expense. Notwithstanding the foregoing, failure to give notice shall not limit or otherwise reduce the indemnity provided for in this Agreement except to the extent that failure to give notice materially prejudices the rights of the indemnifying party. The indemnifying party is not permitted to settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
13. Limitation of Liability
13.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, RILL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR THE RILL SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF RILL WAS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL RILL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR THE RILL SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT PAID BY CUSTOMER TO RILL DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (b) $100.
13.3 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY RILL TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
14. GENERAL
14.1. Relationship. Rill will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of these Terms.
14.2. Assignability. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Rill. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
14.3. Subcontractors. Rill may utilize a subcontractor or other third party to perform its duties under these Terms so long as Rill remains responsible for all of its obligations under these Terms.
14.4. Consent to Electronic Communications. By using the Rill Services, Customer consents to receiving certain electronic communications from Rill. Customer agrees that any notices, agreements, disclosures, or other communications that Rill sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
14.5. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
14.6. Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
14.7. Arbitration. Any controversy or claim arising out of or relating to these Terms, or any breach of these Terms, will be determined by binding arbitration administered by, and in accordance with the rules of, the American Arbitration Association. Any arbitration will be conducted by three arbitrators (with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators) in San Francisco County, California and will be conducted (and the award rendered) in English. The award rendered by the arbitrators will be final and binding on the parties, and the arbitral judgment may be entered in any court of competent jurisdiction. Nothing in this Section 11.7 prevents either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
14.8. Waiver. The waiver by either party of any breach of any provision of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
14.9. Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Rill Services under these Terms is found to be illegal, unenforceable, or invalid, Customer’s right to use the Rill Services will immediately terminate.
14.10. Privacy Policy. Please read the Rill Privacy Policy carefully for information relating to our collection, use, storage, disclosure of personal information. The Rill Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
14.11. Entire Agreement. These Terms, together with the Rill Privacy Policy and any other agreement expressly incorporated by reference into these Terms, are the complete expression of the agreement between these parties regarding Customer’s use of the Rill Services. These Terms supersede, and these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not affect the validity of any agreements between the parties relating to professional services relating to the Rill Services that Rill may provide.
