RiverTools Software-as-a-Service AgreementThis Software as a Service Agreement ("SaaS") (hereinafter referred to as "Agreement") is entered on the date when a new subscription begins (hereinafter referred to as "Effective Date"), By and Between Customer (hereinafter referred to as "Customer"), and Rivix, LLC (hereinafter referred to as "Company"), incorporated in Broomfield, CO 80020 (USA). The Company and the Customer shall hereinafter collectively be referred to as "Parties," and individually as "Party". The Company and the Customer agree that the following terms and conditions will apply to the Services provided under this Agreement and Orders placed thereunder. TERMS OF THE AGREEMENT.1. DEFINITIONS(a) "Customer Content" means all relevant data, including all text, sound, video or image files, and software, that are provided by the Customer to the Company for the SaaS Services. (b) "Documentation" means the written and/or electronic release notes, user guides, online help, training materials, and/or other published technical documentation about the applicable Service provided by the Company to the Customer, together with access to the Service. (c) "Order" means any ordering document between the Customer and the Company that specifies the Service being purchased. (d) "Software" means the object code version of any software to which the Customer has been provided access as part of the Service, including all updates or new versions. (e) "Services" refers to the Company's internet-accessible (including all other technical and non-technical services) service made available by access to and use of software products hosted by the Company to which the Customer has subscribed under the relevant Order, including any documentation, updates, upgrades, support, and content. (f) "Subscription Term" shall mean the period specified in this Agreement during which the Customer shall have access to Software for use and operation through the Company's SaaS Services. The Subscription Term shall renew for successive intervals of one month or one year (depending on which interval is specified in the Order) unless either party delivers written notice of non-renewal to the other Party at least 3 days prior to the expiration of the then-current Subscription Term. 2. LICENSE GRANT.(a) During the Subscription Term, the Customer shall receive a non-assignable, non-exclusive, royalty-free, worldwide right to access and use the SaaS Services solely for their internal business operations under the terms of this Agreement. (b) The Customer shall acknowledge that this Agreement is a services agreement, and the Company shall not deliver copies of the Software to the Customer as part of the Services. 3. CUSTOMER RESPONSIBILITIES.(a) In connection with its use of the Services, the Customer shall:
(b) In using the Services, the Customer shall not:
(c) License from Customer: Subject to the terms of this Agreement, the Customer shall grant to the Company a limited, non-exclusive, and non-transferable license to reproduce, modify, and display Customer Content solely as deemed necessary to provide the Services to the Customer. 4. OWNERSHIP AND RESTRICTIONS.(a) The Customer retains the intellectual property rights and ownership in and to its Customer Content. (b) The Company or its licensors retain all ownership and intellectual property rights to the Software, Services, Documentation, and anything developed, improved, modified, and/or delivered under the Agreement. (c) Third-party technology that may be appropriate or necessary for use with the Company's programs is specified in the Program Documentation or ordering document, as applicable. The Customer's right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by the Company and not under this Agreement. 5. SERVICE DESCRIPTION.The Company agrees to provide the Customer with access to RiverTools 5.0 ("Service") as a hosted, web-based solution. The Service includes the provision of the following: (a) Core Functionality. The Service includes the ability to download digital elevation models (DEMs) from online sources, and to extract, visualize, query, and analyze information and digital products derived from DEMs. (b) Support and Maintenance. The Company will provide technical support, updates, and maintenance as per the format agreed upon by the Parties. (c) Service Availability. The Service will be available all the time unless there is a scheduled maintenance, which shall be communicated by the Company to the Customer accordingly in writing. (d) Data Storage and Backup. The Service Provider will ensure secure storage and regular backup of Customer data as per the terms detailed in the Company's data management policy. Such data management policy shall be made available to the Customer upon request. (e) Limitations and Exclusions. The Service does not include consulting services beyond basic technical support. Any additional services required by the Customer will be subject to separate terms and charges. Any other service description not provided for under this Agreement shall be separately agreed to by the Parties in writing as an annexure or supplement to this Agreement. 6. SERVICE FEES.The Customer agrees to pay the Service Provider the fees as specified (the "Fees") below:
$14.99/month for Basic subscription, or The above Fees are based on the user-selected subscription tier in the Order, and a monthly or yearly subscription model. There is a discount for subscriptions that renew annually. Payment is due at the end of each one-month or one-year billing period, as determined from the date when the subscription began. In the event that payment is not received when due, the Customer will be unable to log in to the Service, but the data products associated with their account will be preserved for a period of at least one month, unless the Customer agrees that they can be deleted. The Service Provider may adjust the Fees with 7 days notice, effective at the end of the current billing period. All Fees are exclusive of taxes, which the Customer is responsible for. Fees are non-refundable, and any additional services will be subject to separate fees as agreed in writing. 7. TERM AND TERMINATION.(a) Term. The Term of this SaaS Agreement shall begin on the Effective Date and shall continue until terminated by either Party as outlined in this section. (b) Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other Party that has not been cured within 14 days after receipt of notice of such breach. (c) Suspension for Non-payment. The Company may terminate this Agreement with immediate effect by delivering notice of the termination to the Customer if the Customer fails to pay the invoice amount on time, but only after the Company notifies the Customer of such failure, and such failure continues for 7 days. (d) Effect of Termination.
8. WARRANTIES.(a) The Company represents and warrants that the Service will perform substantially in accordance with applicable specifications contained in the Documentation. In the event the Service does not materially conform to the Documentation, the Customer shall promptly notify the Company in writing, and the Company shall modify such Service to make it perform substantially in accordance with the Documentation. (b) The Company does not guarantee that the SaaS Services will be error-free, virus-free, or uninterrupted or that it will correct all these errors. (c) Except for the Warranty stated above, the Customer and the Company acknowledge that the Service is offered "as is" without warranty of any kind provided by the Seller, including but not limited to any implied warranties of merchantability or fitness for a particular purpose. 9. LIMITATIONS OF LIABILITY.(a) To the maximum extent permitted by Applicable Law, the maximum liability of the Company arising out of or related to this Agreement, whether based upon breach of agreement, tort, warranties, or any other such theory, shall be limited to direct damages, and shall in no event exceed, in the aggregate, the total amount the Customer paid to the Company for the Services under the Order that is subject to the claim during the term. (b) To the maximum extent permitted by Applicable Law, in no event shall the Company or its affiliates, partners, or suppliers be responsible for any indirect, incidental, special, punitive, or consequential damages or any loss of revenues or profits arising out of or related to this Agreement. 10. INDEMNIFICATION.Each party agrees to indemnify and hold the other Party harmless, its respective affiliates, employees, and permitted successors and assigns agains any losses, claims, damages, penalties, liabilities, punitive damages, expenses, reasonable legal fees of whatsoever kind or amount, which result from the negligence of or breach of this Agreement by the indemnifying party, its respective affiliate or successors and any assign that occurs in connection with this Agreement. This section remains in full force and effect even after the termination of the Agreement. 11. CONFIDENTIALITY.All Confidential Information that is communicated to or obtained by either of the Parties in connection with the performance of the above-mentioned Services shall be held by them in full faith. At no time shall the Parties use any such Confidential Information obtained through this association, either directly or indirectly, for personal benefit or disclose or communicate such information to any third party. This provision shall continue to be effective after the termination of this Agreement. 12. ARBITRATION.In the event of any dispute arising in and out of this Agreement between the Parties, it shall be resolved by arbitration. There shall be at least one arbitrator, who shall be appointed by Rivix, LLC. The venue of arbitration shall be Broomfield, Colorado, and the Seat shall be the State of Colorado. The arbitrator's decision shall be final and binding on both Parties. 13. ASSIGNABILITY.Neither Party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other Party, which shall not be unreasonably withheld. 14. NOTICES.Any notices required under this Agreement shall be delivered by certified mail, personal delivery, or overnight delivery. 15. FORCE MAJEURE.Neither Party shall be liable for any failure in performance of the obligation under this Agreement due to cause beyond that Party's reasonable control (including and not limited to any pandemic, fire, strike, act or order of public authority, and other acts of God) during the pendency of such event. 16. MODIFICATION.No modification of this Agreement shall be made unless in writing signed by both parties. 17. SEVERABILITY.If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, all other terms will remain in full force and effect until the Agreement's termination. 18. GOVERNING LAW AND JURISDICTION.This Agreement shall be governed following the laws of the State of Colorado, USA. If the disputes under this Agreement cannot be resolved by arbitration, they shall be resolved by litigation in the courts of the State of Colorado, including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail and hereby waive any jurisdictional or venue defenses otherwise available to them. 19. LEGAL AND BINDING AGREEMENT.This Agreement is legal and binding between the Parties as stated above. This Agreement may be entered into and is legal and binding in the State of Colorado. The Parties each represent that they have the authority to enter into this Agreement. 20. ENTIRE AGREEMENT.This Agreement constitutes the entire understanding of the Parties, revokes and supersedes all prior agreements between them, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing, signed by the Parties hereto, and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may conflict with it. |