Subject to the terms and conditions of the RSA, RevStream will grant to Customer a non-exclusive, nontransferable, non-assignable, worldwide limited license to use the Service solely for Customer’s own business purposes. Except as otherwise may be provided in the Order Form, such license is limited to a single production instance.
The availability of the Service is subject to the RevStream SLA. RevStream will provide support to ensure the proper functioning of the Service consistent with the RevStream SLA.
RevStream reserves the right to make changes, modifications and enhancements to the Service from time to time; provided, however, that (a) RevStream will give Customer THIRTY (30) days prior written notice of any material changes in functionality provided by the Service, and (b) the material changes do not decrease or otherwise adversely affect material functionality purchased and regularly used by Customer.
Customer may not release to any third party the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of RevStream. Except as otherwise provided herein, Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content; (b) modify or make derivative works based upon the Service or the Content; (c) reverse engineer the Service; (d) access the Service in order to build a competitive product or Service whether used internally or licensed to others; or (e) enter Personal Data into the Service. Additionally, Customer shall not use the Service to (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violating third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Customer shall order the Service by completing and signing an Order Form along with the RSA. In the event that Customer’s business practices require that a purchase order number be issued prior to payment of any RevStream invoices issued pursuant to an Order Form, then such purchase order number will be provided to RevStream in the signed Order Form or by email as soon as possible following the execution of the RSA. Customer’s delay in providing any purchase order number to RevStream may delay provision or availability of the Service to Customer. No terms, provisions or conditions noted on any purchase order, acknowledgement, or other business form or writing will have any effect on the RSA or the rights, duties or obligations of the parties hereunder unless duly signed by RevStream and Customer. RevStream will not be liable for payment of any costs or fees in connection with third-party vendors used or required by Customer for payment processing.
Customer is responsible for all activity
occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Service, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall (i) notify RevStream immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Service; (ii) report to RevStream immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, RevStream Technology, Service or deliverable that becomes known or suspected by Customer; and (iii) not impersonate another RevStream user or provide false identity information to gain access to or use the Service
Customer shall indemnify and hold RevStream and its affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that use of the Customer Data infringes a copyright, patent, or a trademark of, or has caused harm to the data privacy rights of, a third party provided in any such case that RevStream (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases RevStream of all liability and does not adversely affect RevStream’s business or Service); (c) provides to Customer all available non-confidential information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
RevStream shall indemnify and hold Customer and its affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that the Service, including but not limited to the underlying software, infringes a copyright, patent, trademark, or other third party right; provided, in any such case, that Customer (a) promptly gives notice of the claim to RevStream; (b) gives RevStream sole control of the defense and settlement of the claim (provided that RevStream may not settle such claim unless such settlement unconditionally releases Customer of all liability); (c) provides to RevStream all available non-confidential information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
Customer will comply at all times with the RevStream Security Policy. RevStream does not own any Customer Data and RevStream’s use of Customer Data shall be limited to the purpose of providing the Service to the Customer and for RevStream to meet its obligations hereunder. RevStream may audit Customer Data for the limited purpose of determining the applicable Subscription Fee schedule. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use the Customer Data. Customer shall at all times ensure that data storage, handling and transmission are in strict compliance with Customer’s data security policies and applicable RevStream security policies as may be published from time to time. RevStream shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data unless caused by the negligent act or omission of RevStream. Customer agrees and acknowledges that (i) RevStream is not obligated to retain any Customer Data for longer than THIRTY (30) days after termination ofthe RSA, and (ii) RevStream has no obligation to retain Customer Data, and may delete Customer Data on THIRTY (30) days prior written notice, if Customer has materially breached the RSA and such breach remains uncured as provided in the RSA. Upon termination for cause resulting from an uncured breach, Customer’s right to access or use Customer Data immediately ceases, and RevStream shall have no obligation to maintain or forward any Customer Data.
RevStream owns all right, title and interest, including all related Intellectual Property rights, in and to the RevStream Technology, the Content, and the Service. The RevStream name, the RevStream logo, and the product names associated with the Service are trademarks of RevStream or third parties, and no right or license is granted to use them.
Customer shall pay all Subscription Fees in timely fashion as and when they become due. Subscription Fees for the Initial Term shall be due upon mutual execution of the RSA and corresponding Order Form, and are not contingent upon Customer’s acceptance of the Service or of any work rendered by RevStream pursuant to any Statement of Work. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Payment terms are net-30 days from the invoice date, without offsets or deductions of any kind, and payment is due in US dollars. The Subscription Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on RevStream’s income. RevStream reserves the right to modify the Subscription Fee schedule for the Service, not to exceed TEN PERCENT (10%) per annum, and to introduce new charges to become effective for any Renewal Term by providing Customer written notice at least SIXTY (60) days prior to the end of the then current Term.
The RSA will take effect on the Effective Date and will continue in effect until duly terminated thereunder. The term of Customer’s subscription to the Service will begin on the Service Start Date and will continue in effect for the Initial Term, thereafter automatically renewing for successive one-year Renewal Terms unless and until terminated hereunder.
Customer is financially committed to the full amount of the Subscription Fees due for the Initial Term and any subsequent Renewal Term, if applicable, and all payments made by Customer are strictly non-refundable except as otherwise set forth in the RSA or Order Form.
Customer may terminate the Service for any reason at the end of the Initial Term or at the end of any Renewal Term upon confirming SIXTY (60) day prior written notice. RevStream may terminate the RSA for any reason at the end of the Initial Term or any Renewal Term upon confirming SIXTY (60) day prior written notice.
Customer’s failure to deploy or use the Service shall not relieve Customer of its payment and other obligations under the RSA and corresponding Order Form.
In addition to any other rights it may have hereunder or pursuant to applicable law, RevStream reserves the right to suspend or terminate the RSA, the Order Form, and Customer’s access to the Service if Customer’s account becomes delinquent and is uncured for a period of THIRTY (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection, including reasonable attorneys’ fees.
RevStream represents and warrants that the Warranted
Service will perform under normal use and circumstances substantially in accordance with the RevStream Functional Specifications. This warranty shall be valid for the entire term of the RSA. RevStream further warrants that the Warranted Service will be free of Malicious Code, except for any Malicious Code contained in Customer-uploaded data or otherwise originating from Customer.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, REVSTREAM MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY. REVSTREAM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. REVSTREAM DOES NOT WARRANT THAT THE SERVICE, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), IS OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR WILL BE TIMELY OR SECURE.
THE REVSTREAM SERVICE IS NOT WARRANTED TO SATISFACTORILY SERVICE, IN WHOLE OR IN PART, ANY CUSTOMER SYSTEMS, PROCESSES AND METHODOLOGIES.
REVSTREAM MAKES NO WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, THAT REVENUE AND OTHER ACCOUNTING TREATMENTS, DATA AND REPORTS RESULTING FROM CUSTOMER’S USE OF THE SERVICE WILL COMPLY WITH US GAAP OR ANY OTHER REGULATORY GUIDELINES AND POLICIES.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. REVStream IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY REVStream.
IN NO EVENT SHALL REVSTREAM’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE RSA EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE APPLICABLE TERM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE RSA, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer grants RevStream the right to use Customer’s name, mark and logo on RevStream’s website, in RevStream marketing materials and press releases, and to identify Customer as a RevStream Customer; provided, however, that any such use must be pre-approved in writing by Customer, such approval not be unreasonably withheld. Customer further agrees that “Powered by RevStream” or similar marks and attribution may appear in the Content.