TERMS AND CONDITIONS
These Terms and Conditions (“Agreement”) set forth the terms and conditions under which Rivet Work, Inc. (“Rivet Work”) will provide access to certain proprietary technology to Customer. This Agreement supplements the Order (if applicable) executed between Customer and Rivet Work. The Agreement sets forth the terms and conditions under which Customer may Use (as defined herein) Rivet Work’s software indicated on the Order (“Software”).
THIS AGREEMENT GOVERNS CUSTOMER’S USE OF THE PROPRIETARY SOFTWARE MADE AVAILABLE BY RIVET WORK AND CUSTOMER’S USE OF THE RELATED SERVICES DELIVERED BY RIVET WORK. BY ACCEPTING THIS AGREEMENT WHEN CHECKING OUT THROUGH RIVET WORK’S WEBSITE OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” HEREIN.
1. LICENSE GRANT AND RIGHT OF USE
1.1. License Grant. Subject to all limitations and restrictions contained herein and the Order, Rivet Work grants Customer a subscription, software as a service (“SaaS”), nonexclusive, nonsublicensable, and nontransferable right to use the Software as intended and set forth in the Rivet Work Documentation (“Use”). Upon termination or expiration of this Agreement for any reason, Customer will cease, and will ensure the Customer Personnel (defined below) cease, all use of the Software. Rivet Work reserves all rights in the Software not expressly granted. For purposes of this Agreement “Customer Personnel” means: (i) the employees of Customer; and (ii) Customer’s third-party contractors who are aware of and have agreed in writing to be bound by the terms of this Agreement. Notwithstanding the foregoing, Customer remains fully liable to Rivet Work for all breaches of this Agreement by Customer Personnel and any other activity of Customer Personnel with respect to the Software and this Agreement. Customer agrees that its license of the Software is neither contingent on the delivery of any future functionality nor dependent on any comments made by Rivet Work or its representatives regarding future functionality or features. For purposes of this Agreement, “Documentation” means any operator and user manuals, training materials, implementation guides, technical materials and other materials provided by Rivet Work.
1.2. Use. Customer shall not allow any website to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Software.
1.4. Customer Restrictions. Except as expressly permitted under this Agreement, Customer shall not transfer, license, assign, distribute, translate, reverse engineer, decompile, disassemble, or modify the Software or Confidential Information (as defined herein), duplicate the Software or Confidential Information or portions thereof, or allow any third party to do any of the foregoing. Further, Customer shall not, and shall not permit the Customer Personnel to, (i) directly or indirectly: sell, rent, lease, transfer, assign, or exploit the Software other than as expressly provided herein; (ii) copy any features, functions, look and feel or graphics of the Software unless permitted herein or in the Documentation; or (iii) interfere with the integrity or performance of the Software. Neither Customer nor any User shall provide to Rivet Work any protected health information (“PHI”) or any other personal information, without Rivet Work’s prior written consent. Neither Customer nor any Customer Personnel may access or use the Software if any of them is a competitor of Rivet Work or for the principal purpose of monitoring availability, performance or functionality.
2.1. Fees. Customer shall pay Rivet Work the fees indicated on the Order. Unless otherwise provided in an Order, all fees shall be paid to Rivet Work within fifteen (15) days of the date of invoice provided by Rivet Work to Customer. The initial payment for the Software must be made on the Order Effective Date and, for any Renewal Term, on the first day of such Renewal Term. If payment is not received when due, Rivet Work reserves the right to, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at one and a half percent (1.5%) or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery (including reasonable attorneys’ fees), (ii) suspend Customer’s access to the Software until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (iii) terminate this Order and access to the Software.
2.2. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Rivet Work and hold Rivet Work harmless for all sales, use, VAT, excise, property or other taxes or levies which Rivet Work is required to collect or remit to applicable tax authorities. This provision does not apply to Rivet Work’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Rivet Work with a valid tax exemption certificate.
3.1. Maintenance and Support. Rivet Work shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by Rivet Work as defects in the Software (“Maintenance Services”).
3.2. Exclusions. Rivet Work shall not be obligated to provide Maintenance Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”).
3.3. Third Parties. Rivet Work shall have the right to use third parties, including employees of Rivet Work’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder, including any Maintenance Services and any activities to improve the Software. For purposes of this Section, all references to Rivet Work or its employees shall be deemed to include such Subcontractors.
4.1. Reservation of Rights. By signing the Order, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Rivet Work materials, including Documentation, provided to Customer. Rivet Work shall own all right, title, and interest in such Software and Rivet Work materials, including Documentation, subject to any limitations associated with intellectual property rights of third parties. Rivet Work reserves all rights not specifically granted herein. Any result or creation derived from Use of the Software is Rivet Work’s property. Customer agrees that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Customer owns any intellectual property rights in such proprietary materials, Customer hereby irrevocably assigns and transfers to Rivet Work all rights, title and interest in such proprietary materials. For clarity, Customer shall not own or have any rights to Customer Personnel accounts or any information of such Customer Personnel stored in such account, including any worker job history (“Personnel Data”), provided that if Customer terminates an employee or such employee ceases working for Customer for any reason, such employee shall no longer have access to any Customer Data. Notwithstanding any other term of this Agreement, Rivet Work shall have a paid-up, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and exploit any ideas, suggestions, enhancement requests, recommendations or feedback provided by Customer or any Users relating to the Software.
4.2. Data. Customer shall own all data collected through the Software including, but not limited to, user data, excluding any Personnel Data (“Customer Data”). Customer hereby grants to Rivet Work a perpetual, non-exclusive, worldwide, sublicensable, transferable license to use the Customer Data for the purposes of: (i) providing the Software to Customer; (ii) improving the Software; and (iii) Rivet Work’s internal business purposes. Nothing in this Agreement shall preclude Rivet Work from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Rivet Work in the performance of services hereunder. Rivet Work owns and shall continue to own all right, title and interest in and to all aggregate or anonymized data and any statistical information, benchmarking, comparison, and other analytics or analyses created or developed by Rivet Work from performance and usage data generated through Customer’s use of the Software (collectively, “Aggregate Data”). Aggregate Data will be reasonably de-identified by Rivet Work.
5.1. Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
5.2. Confidentiality of Software. Customer may use Rivet Work’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Rivet Work Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Rivet Work; (ii) the oral and visual information relating to the Software; and the terms and conditions of this Agreement.
5.3. Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
5.4. Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Rivet Work Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
5.5. Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section. Neither party shall export, disseminate or otherwise transfer, in writing, orally and/or electronically, the other party’s Confidential Information or the Software outside of the United States.
5.6. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
6. REPRESENTATIONS; WARRANTY
6.1. Authorized Representative. Customer and Rivet Work warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
6.2. Disclaimer of Warranties. Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. Customer acknowledges and agrees that any information from the Software is informational only and should not be Customer’s sole basis for actions or omissions. Customer is solely responsible for its use and Customer Personnel’s use of the information from the Software. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND RIVET WORK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
6.3. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Rivet Work.
7.1. Except to the extent caused by Rivet Work’s gross negligence or intentional misconduct relating to the Software, Customer shall indemnify defend and hold harmless, at its sole expense, Rivet Work for any third party claim, demand, or suit (“Claim”), arising out of Customer’s or a User’s use of the Software and/or breach of this Agreement; and shall indemnify and hold Rivet Work harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorney’s fees) awarded or assessed against Rivet Work in association with such Claim, or reached through a negotiated settlement of a Claim.
7.2. Except to the extent caused by Customer’s gross negligence or intentional misconduct relating to the Software, Rivet Work shall indemnify defend and hold harmless, at its sole expense, Customer for any Claim, arising out of Rivet Work’s breach of this Agreement; and shall indemnify and hold Customer harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorney’s fees) awarded or assessed against Customer in association with such Claim, or reached through a negotiated settlement of a Claim.
8. LIMITATION OF LIABILITY
8.1. Liability Cap. IN NO EVENT SHALL RIVET WORK BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES IN THE ONE YEAR PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.2. Disclaimer of Damages. IN NO EVENT SHALL RIVET WORK BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. TERM AND TERMINATION
9.1. Termination by Rivet Work. This Agreement and any license created hereunder may be terminated by either party (i) on thirty (30) days written notice to the other party if the other party fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (ii) by a party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
9.2. Termination. Upon termination of this Agreement, neither Customer nor any User shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
9.3. Other Remedies. Termination of this Agreement shall not limit Rivet Work from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
10.1. Compliance With Laws. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
10.2. Export. Rivet Work’s Software, products, technology and services are subject to U.S. and local export control and sanctions laws. Customer acknowledges and agrees to the applicability of and its compliance with those laws. Customer agrees that it will not receive, use, transfer, export or re-export any Software in a way that would cause Rivet Work to violate those laws. Customer also agrees to obtain any required licenses or authorizations.
10.3. Assignment. This Agreement may not be assigned, in whole or in part, by Customer to any third party without the prior written consent of Rivet Work. Any such attempted assignment shall be null and void. Rivet Work may freely assign this Agreement to any affiliate or third party, provided that such third party agrees to be bound by the terms hereof.
10.4. Survival. The provisions set forth in Sections 2, 5, 6.2, 7, 8, and 9 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
10.5. Notices. Rivet Work may give notice by means of a notification on the Software, electronic mail to Customer’s e-mail address in the Order or otherwise on file with Rivet Work, or by written communication sent by first class mail or pre-paid post to Customer’s address on file with Rivet Work. Customer may give notice to Rivet Work at any time by letter sent by e-mail to firstname.lastname@example.org or by letter delivered first class mail to Rivet Work at 1420 Washington Blvd STE 301, Detroit MI 48226. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by e-mail. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
10.6. Force Majeure. Rivet Work shall not be liable to Customer for any delay or failure of Rivet Work to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Rivet Work. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
10.7. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
10.8. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.
10.9. Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
10.10. Publicity. Upon the successful deployment of the Software and subject to Customer’s prior written approval of the content, Rivet Work may refer to Customer, in public announcements or public disclosures relating to this Agreement.
10.11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
10.12. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Choice of Law; Venue. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF MICHIGAN WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. THE PARTIES AGREE THAT ANY LITIGATION ARISING BETWEEN THE PARTIES IN RELATION TO THIS AGREEMENT SHALL BE INITIATED AND MAINTAINED IN THE STATE OR FEDERAL COURTS HAVING JURISDICTION OVER WASHTENAW COUNTY, MICHIGAN, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO EXCLUSIVE JURISDICTION OVER VENUE OF SUCH COURTS.