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RYGEN GENERAL TERMS AND CONDITIONS AS OF 08.21.25
These General Terms and Conditions (the “GTC”) apply to each Rygen Sales Order Form (“Order Form”) entered into by and between Rygen Technologies, Inc.(“Rygen”) and the customer entity named in theOrder Form (“Customer”). Customer and Rygen may be referred to herein individually as a “Party” and collectively as the “Parties.” TheGTC contains the terms and conditions that govern the provision of certain products and services by Rygen to Customer as indicated in the Order Form, which may include cloud-based software-as-a-service offerings and associated support services or other ordered products or services (“Services”).
Each Order Form will form a separate agreement that is governed by and incorporates the following (collectively, the “Agreement”):
1. Order Form
2. Statement of Work(s)
3. These GTC
4. Service Level and Support Terms
Each of the above will include any separate document, policy or provision referred to within. If there is a conflict between any of the above, the order of precedence will be the order in which they are listed above.
Inconsideration of the mutual covenants and agreements contained in theAgreement, and for other good and valuable consideration, the receipt and sufficiency of which are expressly acknowledged, the Parties hereby agree as follows:
1. Services.
1.1. Generally. Rygen will provide the Services as ordered by Customer through an Order Form duly executed by an authorized representative of both Parties, in accordance with the terms and conditions of this Agreement.
1.2. Order Form. The Order Form will set forth (a) a description of the Services; (b) the pricing for such Services; (c) the term of such Services; and (d) any additional terms and conditions related to such Services.
1.3. Statement of Work. The Services may be further described in one or more statement of work(s) (each, an “SOW”) which may be entered into in connection with the Order Form.Each SOW may include (a) additional descriptions of the Services to be provided by Rygen, (b) pricing or additional fees associated with the Services, (c)deliverables or timeliness associated with the Services, and (d) such additional terms relating to the relevant Services as may be agreed between theParties.
1.4. Performance Standard. Rygen will perform the Services (i) in a professional and workmanlike manner, (ii) consistent with the terms of this GTC, any applicable OrderForm and the Service Level and Support Terms, and (iii) in compliance with all applicable laws, rules and regulations.
1.5. Subcontracting. Rygen may engage subcontractors and other third parties to assist in performing the Services or its other obligations under this Agreement, provided that Rygen shall remain responsible for the performance of its obligations under the Agreement.
1.6. Third Party Software. The Services may contain or involve Customer’s access to certain software or services made available by third parties (“Third Party Software”),as may be further specified in an Order Form. In addition, the Third Party Software include components subject to open source software, freeware, shareware or similar licensing or distribution models (“Open Source Components”). Customer will be responsible to hold or acquire any required licenses to any Third Party Software enabled through or interfacing with Rygen’s products, software or other Services provided under this Agreement (e.g., SMC3, Trimble, DAT). Rygen’s products, including but not limited to Corsair, may require Customer to input license keys to suchThird Party Software for activation of these services. Customer may be required to agree to additional third party terms and conditions relating to Third Party Software (“ThirdParty Terms”) and, in the event any such Third Party Terms apply, Customer will be responsible for ensuring that it complies with such Third Party Terms and for acquiring and maintaining the requisite licenses to such Third PartySoftware. CUSTOMER AGREES THAT THE OPEN SOURCE COMPONENTS AND THIRD PARTY SOFTWARE ARE PROVIDED ON AN “AS IS”, “WHERE IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND THAT RYGEN WILL NOT HAVE ANY RESPONSIBILITY FOR ANY USE OF THE OPEEN SOURCE COMPONENTS AND THIRD PARTY SOFTWARE, OR ANY LIABILITY FOR ARISING FROM THE OPEN SOURCE COMPONENTS AND THIRD PARTY SOFTWARE.
1.7. Customer Dependencies. Customer acknowledges that Rygen’s ability to meet its obligations to provide the Services may be dependent on certain necessary Customer inputs, including without limitation, (i) access to required data and information, systems and premises as may be necessary to provide the Services; (ii) the performance of certain third party providers that Customer may require Rygen to use in connection with its obligations hereunder, (iii) Customer’s compliance with any applicable Third Party Terms, and (iv) other dependencies as may beset forth in an Order Form or otherwise agreed to between the Parties in writing (collectively, (i) through (iv) the “Customer Dependencies”). The Parties agree that the lack of or failure to provide any Customer Dependency may limit, or render impossible, Rygen’s provision of the Services, that Customer has the primary responsibility for ensuring that all Customer Dependencies are satisfied and fulfilled, and that the failure of Rygen to provide the Services according to this Agreement shall not constitute a breach to the extent that such failure to provide is due to the failure of a Customer Dependency. Rygen will reasonably collaborate with Customer to remediate any lack of or failure to provideCustomer Dependency where such collaboration would facilitate such remediation.
2. Fees.
2.1. Fees. In consideration of the Services, Customer shall pay to Rygen the fees set forth in an applicable Order Form (“Fees”), or if no fees are set forth in the Order Form, at Rygen’s then-standard subscription pricing or professional rates, as applicable. In addition, certain Services may require travel by Rygen personnel, including with respect to on-site Services ordered by Customer. Customer agrees to reimburse Rygen for all reasonable and documented transportation, lodging, meals and other travel-related expenses incurred in connection with the provision of the Services.
2.2. Invoicing. Rygen will invoice Customer the relevant Fees on a monthly basis in advance forServices to be provided in the following month, or as otherwise indicated on anOrder Form. Customer will pay the invoiced amounts within thirty (30) days of receiving such invoice. Any late payments will accrue interest at a rate of one and one half percent (1.5%) per month.
2.3. Taxes. Unless otherwise specified in an Order Form, the Fees exclude any taxes, duties, levies or charges of any kind assessable by any governmental authority (including any VAT, sales/use or withholding taxes). Customer shall be responsible for any taxes related to the Services, provided that each Party will be responsible for the payment of all taxes based on its own income. If Rygen is legally required to pay or collect any taxes for which Customer is responsible, Rygen may include such amounts on the same invoice as the applicable fee for the Service for which they were incurred.
2.4. Disputed Amounts. Customer will provide notice of any disputed amounts on any invoice prior to the payment due date under such invoice. The Parties agree to work in good faith to promptly resolve any disputes regarding invoices or payments.
3. Confidentiality.
3.1. Definition of Confidential Information. Rygen and Customer each acknowledge that it may receive Confidential Information (in such case, “Recipient”)of or from the other (in such case, “Discloser”) in connection with thisAgreement. For the purposes of this Agreement, “Confidential Information” means any and all nonpublic information and materials of or related to Discloser disclosed in connection with this Agreement that is either marked as confidential or proprietary, or would reasonably be understood to be confidential or proprietary. ConfidentialInformation does not include information to the extent it: (i) is or becomes known to the general public other than by an unauthorized disclosure byRecipient or its representatives; (ii) was known by Recipient before its disclosure by Discloser; (iii) is rightfully obtained without restriction from a third party who has the right to make such disclosure; or (iv) is developed by Recipient without use of, reliance upon, or reference to anyConfidential Information of Discloser.
3.2. Nondisclosure and Limited Use. Recipient will hold Discloser’s ConfidentialInformation in trust and confidence and use reasonable measures to protect suchConfidential Information, including, at a minimum, those measures thatRecipient takes to protect its own Confidential Information. Recipient will not use Discloser’s Confidential Information, or share or disclose suchConfidential Information with any other person, except as necessary to provide or receive the Services under this Agreement and to perform its obligations under this Agreement. In the event Recipient does share Discloser’s ConfidentialInformation as permitted above, it will cause such person to comply with confidentiality obligations substantially similar and no less protective than those in this Agreement.
3.3. Permitted Disclosure. Recipient may use or discloseDiscloser’s Confidential Information to the extent approved in writing in advance by Discloser, or to the extent Recipient is legally compelled to disclose such Confidential Information under the rules of any applicable law, rule or regulation. Before any such permitted disclosure, Recipient will provide Discloser, to the extent legally permissible, reasonable advance notice of such anticipated disclosure and will cooperate with Discloser to protect against any such disclosure or narrow the scope of such disclosure.
3.4. Notice for Unauthorized Use. Recipient will promptly notifyDiscloser after becoming aware of any actual loss or unauthorized use or disclosure of or access to Discloser’s Confidential Information and will takereasonable steps to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.
3.5. Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, Recipient will, at Discloser’s instruction, promptly destroy or return to Discloser all ConfidentialInformation and confirm such return or destruction to Discloser. Recipient may retain any such materials to the extent required by law, regulatory authority,or bona fide document retention policy and subject to the confidentiality obligations set forth in this Agreement.
3.6. Survival. The confidentiality obligations set forth in this Agreement will continue during the Term and for three (3) years following the Term, and with respect toany Confidential Information that constitutes a trade secret, will continue for as long as such Confidential Information remains a trade secret.
4. Data
4.1. Ownership of Customer Data. As between Customer and Rygen, Customer will retain exclusive ownership of data provided by Customer or on its behalf (“Customer Data”). Customer shall ensure that it has and maintains at all times all rights, consents and licenses necessary to transmit and provide access to the Customer Data to Rygen and to permit Rygen and its service providers to use Customer Data to provide the Services and as otherwise permitted under this Agreement. Customer shall be responsible for the accuracy, adequacy, quality and completeness of the Customer Data.
4.2. License toCustomer Data. Customer hereby grants to Rygen a worldwide, non-exclusive, fully paid-up, royalty-free, sub-licensable (through multiple tiers), non-transferable (except in connection with an assignment permitted under Section 10.3 (Assignment)) license to use, reproduce, modify and otherwise exploit Customer Data: (i) to provide and perform the Services or otherwise perform its obligations under this Agreement,(ii) to improve, support and develop Rygen’s products and services, and (iii)to perform or generate research, statistical analyses, models, comparison reports and other analyses. The license granted pursuant to clauses (ii) and (iii) in the foregoing sentence shall be perpetual and irrevocable, and shall survive the termination or expiration of this Agreement. Without limiting the fore going, Customer agrees that Rygen may collect or generate and retain exclusive ownership of all transactional, technical, statistical, log, or other usage data or analytics derived from interactions with the Services, in anonymized and aggregated form, (collectively, “Usage Metrics”), and may freely use such Usage Metrics without restriction, including to analyze and improve Rygen’s products and services, and to develop benchmarking data and industry reports, provided that any Usage Metrics. As between Rygen and Customer, anyService improvements, modifications or inventions or any new Services relating to or based on any Usage Metrics developed by or on behalf of Rygen (but excluding Customer Data itself) will be solely owned by Rygen.
4.3. Security. Rygen will maintain reasonable security policies and procedures designed toprotect the security of Customer’s Confidential Information, including (i)maintaining reasonable administrative, physical and technical controls overdata centers, offices and other facilities that provide the Services, and (ii) using commercially reasonable efforts to protect systems from unauthorized and unlawful access, including the use of firewall, anti-virus and data encryption technologies. If Rygen becomes aware of an actual or suspected security breach of Customer’s systems or other compromise to the security or integrity of any of Customer’s data in its possession or control, Rygen will (a) promptly notify Customer as soon as reasonably practicable after becoming aware of such event, (b) take reasonable remedial action to prevent similar events from occurring, and (c) reasonably cooperate with customer in any government or customer investigations and in sending notices to any persons affected by such event.
4.4. Customer Personal Information. Unless otherwise agreed toby the Parties in an Order Form or reasonably anticipated in the scope of theServices, Customer will not provide Rygen with any personal information that relates to an identified or identifiable living individual (“CustomerPersonal Information”). In the event Rygen learns that it has received Customer Personal Information other than asset forth in an Order Form or reasonably anticipated in the scope of the Services, it may notify Customer and atCustomer’s option, return, redact or destroy such Customer PersonalInformation.
5. Representationsand Warranties; Disclaimer.
5.1.Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that:
a) It is lawfully able to and has the authority to enterinto this Agreement;
b) It is duly organized, qualified and registeredto transact business in all relevant locations;
c) This Agreement has been duly and validlyexecuted and delivered by such Party and constitutes a legal, valid and binding obligation of such Party;
d) The execution, delivery and performance of thisAgreement will not conflict with or violate or cause a breach of any agreement, contract or instrument to which such Party is a party.
5.2. Disclaimer. THE FORE GOING REPRESENTATIONS AND WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AND rygen EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. NO WARRANTY IS MADE BY RYGEN ON THE BASIS OF TRADE USAGE OR COURSE OF DEALING. RYGEN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR RESULTS OF THE USE of the services, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE USE OF THE SERVICES WILLBE UNINTERRUPTED OR ERROR-FREE. customerACKNOWLEDGES AND AGREES THAT THE OPERATION OF THE SERVICES RELIES ON THE OPERATION OF THE INTERNET, TELECOMMUNICATIONS INFRASTRUCTURE AND OTHER THIRD PARTY SERVICES AND THAT rygen WILL NOT BE LIABLE FOR ANY FAILURES OF SUCH THIRD PARTY SERVICE PROVIDERS.
5.3. Critical Applications Disclaimer. CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY RYGEN SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT, IS NOT DESIGNED FOR ANY CRITICAL APPLICATIONS AND THAT RYGEN PROVIDES NO WARRANTY THAT ANY SERVICES ARE FIT FOR CRITICAL APPLICATIONS. “CRITICAL APPLICATIONS” MEANS LIFE SUPPORT SYSTEMS ORTHE LIFE SUPPORT MARKET, MEDICAL APPLICATIONS, CRITICAL CARE APPLICATIONS,CONNECTIONS TO IMPLANTED MEDICAL DEVICES, COMMERCIAL TRANSPORTATION OR AVIATION, NUCLEAR FACILITIES OR SYSTEMS, OR ANY OTHER APPLICATIONS WHERE PRODUCT FAILURE COULD LEAD TO INJURY TO PERSONS, LOSS OF LIFE, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. RYGEN HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF ANY SERVICES IN ANY CRITICAL APPLICATION.
6. Intellectual Property.
6.1. Ownership of Background IP. “Background IP”means any intellectual property of a Party in existence before the Term commences, or developed by or on behalf of such Party outside of thisAgreement. Each Party will each retain ownership of its respective BackgroundIP. For the avoidance of doubt, as between the Parties, the Services shall be Rygen’s Background IP, and Rygen will retain all rights, title and interests in and to the Services.
6.2. License to Usethe Services. Rygen hereby grants to Customer a non-exclusive, worldwide, non-sublicensable, non-transferrable license to access and use the Services solely for Customer’s internal business purposes for the term of such Service set forth in the OrderForm. Except as expressly set forth herein, nothing in this Agreement shall be deemed or interpreted to grant or confer on Customer any licenses, rights, title or interests in or to the Services or any Rygen Background IP, whether by implication, estoppel or otherwise.
6.3. Use Restrictions. Customer will not, and will not allow any employee or third party to (i) copy, distribute, display, access, or use the Services or any portion thereof, except as expressly provided for herein, (ii) modify or create any derivative works ofor based upon the Services or any portion thereof; (iii) sublicense or permit the use of the software incorporated in the Services by any other person; (iv)reverse engineer, disassemble, reverse compile or decompile, translate, re-engineer, or otherwise attempt to derive the source code of the Services; or(v) encumber, sell, rent, lease, loan, sublicense or otherwise transfer to any other party any rights to the Services. Any attempt to assign or transfer anyof Customer’s rights, duties or obligations under this Agreement (except as permitted by Section 10.3(Assignment)) will be null and void, unless agreed to in advance in writing by Rygen.
6.4. Feedback. Customer may, from time to time, provide recommendations, comments, questions, corrections, changes, feedback, enhancement requests and suggestions for new features, functionality or other improvements relating to the Services or Rygen’s business (“Feedback”). Customer hereby grants to Rygen a perpetual, irrevocable, worldwide, royalty-free, sub-licensable and non-exclusive license to use and exploit any Feedback, which license shall survive the termination or expiration of the Agreement.
7. Limitation of Liability.
7.1. EXCEPT FOR A PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY), SECTION 4 (DATA) OR SECTION 6 (INTELLECTUAL PROPERTY), A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION), OR A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. EXCEPT FOR RYGEN'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION) AND FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL RYGEN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY (“GENERAL CAP”), PROVIDED THAT RYGEN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A BREACH OF SECTION 3 (CONFIDENTIALITY) OR SECTION 4 (DATA) WILL NOT EXCEED THREE (3) TIMES THE GENERAL CAP; IN EACH CASE, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTACT, TORT, OR OTHERWISE.
8. Indemnification.
8.1. General. Each Party will indemnify, defend and hold harmless the other Party and its directors, officers, employees, agents, and subcontractors (the “Indemnified Parties”) from any loss, liability, damage, award, settlement, judgment, fee, cost or expense (including reasonable attorneys’ fees and costs of suit) (“Losses”) arising out of any third-party claim, allegation, action, demand, proceeding or suit against any of them that arises out of (i) such Party’s fraud, gross negligence or willful misconduct, or (ii) any claim that the other Party’s use of any materials, data or intellectual property of the other Party in accordance with this Agreement infringes, misappropriates or otherwise violates the intellectual property rights of a third party. The above indemnification obligation will not apply to the extent that suchLosses arose from: (a) the Indemnified Parties’ fraud, gross negligence or willful misconduct, (b) the Indemnified Parties’ violation of any applicable law, (c) the Indemnified Parties’ use of any materials, data or intellectual property of the other Party in a manner not in accordance with this Agreement, or (d) the modification of such materials, data or intellectual property of the other Party in a manner not specifically authorized in writing by the other Party (including the combination of any of the same with any other materials, data or intellectual property). In the event a Party’s materials, data or intellectual property is alleged to infringe, misappropriate or violate any third party intellectual property, such Party may: (I) obtain for the other Party the right to use such materials, data or intellectual property free of claims of infringement, misappropriation or violation, or (II) modify or replace such materials, data or intellectual property so that they no longer infringe, misappropriate or violate such third party intellectual property (provided that such modification does not degrade the performance or quality of the Services).
8.2. Indemnification Procedure. The Indemnified Party will promptly notify the indemnifying party in writing of any indemnifiable claim and promptly tender its defense to the indemnifying party. Any delay in such notice will not relieve the indemnifying party from its obligations to the extent it is not prejudiced thereby. The Indemnified Party will cooperate with the indemnifying party at the indemnifying party’s expense. The indemnifying party may not settle any indemnified claim in a manner that adversely affects the Indemnified Party without its consent (which will not be unreasonably withheld or delayed). The Indemnified Party may participate in its defense with counsel of its own choice at its own expense.
8.3. Exclusive Remedy. This Section 8 (Indemnification) sets forthCustomer’s sole remedy, and Rygen’s sole liability and obligation for, any actual or alleged claims or Losses that the Services infringe, misappropriate orviolate any third party intellectual property right.
9. Term; Termination of Services.
9.1. Term. The term of this Agreement (“Term”) will commence as of the first OrderForm entered into between the Parties pursuant to this GTC, and will remain in effect until the earlier of (i) the expiration of all Service or subscription terms set forth in the applicable Order Form; and (ii) termination under thisSection 9 (Term;Termination of Services).
9.2. Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party if the otherParty materially breaches any provision of this Agreement and fails to cure the same within thirty (30) days after written notice.
9.3. Termination for Insolvency. Either Party may terminate thisAgreement upon notice if the other Party is unable to pay its debts when due, makes any assignment for the benefit of creditors, files any petition under the bankruptcy or insolvency laws, has a receiver or trustee to be appointed for its business or property, or is adjudicated bankrupt or insolvent.
9.4. Effect of Termination. Upon termination or expiration of the Agreement, all rights granted by Rygen under the Agreement, including all rights to use the Services, will terminate, and Customer will stop using the Services and return or destroy any copies of the Services and Rygen Confidential Information in its possession or control. Customer will remain liable for the payment any outstanding Fees associated with Services rendered prior to the effective date of termination or expiration.
9.5. Survival. Any provision which is expressly or by implication intended to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement (or any Order Form, if applicable) in accordance with their terms, including Sections 2 (Fees), 3 (Confidentiality), 4.1 (Ownership of Customer Data), 4.2 (License to Customer Data), 5 (Representations and Warranties; Disclaimer), 6.1 (Ownership of Background IP), 6.4 (Feedback), 7 (Limitation of Liability), 8 (Indemnification), 9.4 (Effect of Termination), 9.5 (Survival), and 10 (General).
10. General.
10.1. Entire Agreement. This Agreement, together with the Order Form, and the exhibits, schedules and other documents attached thereto set forth the entire understanding between Customer and Rygen regarding the subject matter of thisAgreement and supersedes any and all prior or contemporaneous discussions, negotiations, proposals, undertakings, understandings and agreements (including any draft agreements) with respect thereto, whether written or oral.
10.2. Amendments and Waiver. No amendment or waiver of any provision of this Agreement will be valid unless signed, in the case of an amendment, by Customer and Rygen, and in the case of a waiver, by the Party against whom the waiver is to be effective. The waiver of any of the terms and conditions of this Agreement will not be construed as a waiver of any other terms and conditions hereof.
10.3. Assignment. Either Party may assign its rights and obligations under this Agreement, in whole and not in part, to its successor in connection with a merger, sale, or other transfer of all or substantially all of its assets. Any other assignment of its rights or obligations under this Agreement will require the other Party’s prior written consent. This Agreement will be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns. Any attempted assignment in violation of this Section 10.3 (Assignment) will be null and void ab initio.
10.4. Dispute Resolution. Customer agrees to negotiate with Rygen in good faith regarding any dispute, claim or controversy related to this Agreement or any Services. If good faith negotiations are unsuccessful within ten (10) business days, then the dispute will be referred to the Parties’ executive officers for further discussion. If the Parties’ executive officers cannot resolve the dispute within an additional 10 business days, then either Party may file suit in a court of competent jurisdiction in accordance with Section 10.5 (Governing Law; Jurisdiction;Venue).
10.5. Governing Law; Jurisdiction; Venue. This Agreement will be construed in accordance with the laws of the State of New York without giving effect to any choice of law rule. All disputes, suits, actions or proceedings relating to this Agreement will be brought solely in the state or federal courts located in the Borough of Manhattan, New York. Customer consents to the exclusive jurisdiction and venue of the State of New York in connection with any such dispute, suit, action or proceeding, and waive any defense of forum non conveniens. Not withstanding the foregoing, if a remedy is unavailable under the laws of the State of NewYork or the in the state or federal courts located in the Borough of Manhattan, New York, and is exclusively available through federal law or an alternative venue, the party will be permitted to seek remedy through such law or alternative venue. Each party hereby expressly waives any right to a trial by jury in any action or proceeding brought by or against either party in connection with this Agreement.
10.6. Interpretation. The section headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting, this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions. The singular number will include the plural, and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to dollars (including via the symbol “$”) will refer to the currencyUnited States dollars.
10.7. Relationship of the Parties. The relationship between the Parties is that of an independent contractor, and this Agreement does not create a partnership, joint venture, agency or employer-employee relationship between the Parties. Neither Party is an agent of the other Party and is not authorized to and will not have any authority to make any representation, contract or commitment on the other Party’s behalf, or otherwise bind the other Party in any respect. Each Party’s employees and other personnel will not be, and will not be deemed to be or treated as, employees of the other Party for any purpose, including for purposes of any compensation, holidays, vacations, workers’ compensation and disability benefits, insurance or other employee benefits otherwise offered or provided by such Party, and each Party will be responsible for all amounts owed to its employees and other personnel in respect of such benefits.
10.8. Publicity. Each Party will not, without the other Party’s prior written approval, use the name or marks of, refer to, or identify such Party (or any related entity) or the subject matter of this Agreement (including any Order Form) in any publicity releases, interviews, promotional or marketing materials, public announcements, customer listings, case studies, testimonials or advertising, or provide copies of this Agreement (including any Order Form), or otherwise disclose the terms of this Agreement or any Order Form, to any third party.
10.9. Notices. All notices and consents required or permitted by this Agreement must be in writing and will be deemed given if given by hand, sent by overnight delivery service, facsimile transmission, or electronic mail (confirmed by letter sent by registered or certified mail) to the address specified in the applicable OrderForm. Either Party may amend its address at any time by notice to the other Party.
10.10. Force Majeure. Neither Party will be responsible for any failure to perform its obligations under this Agreement caused by an event beyond its reasonable control, including wars, riots, natural disasters, pandemics, or any law, regulation, ordinance or other act or order of any court, government or governmental agency(but not including work stoppages or other labor disputes) (any such event, a “Force Majeure Event”), provided, that, the affected Party uses reasonable efforts to avoid or remove the causes of non-performance. Each Party will, with the reasonable cooperation of the other Party, exercise all reasonable efforts to mitigate the extent of a delay or failure resulting from a Force Majeure Event and the adverse consequences of it. If aForce Majeure Event continues for more than thirty (30) days, the Party not affected by the Force Majeure Event may terminate this Agreement upon written notice to the other Party.
10.11. Counterparts and Execution. This Agreement, including any Order Form, may be executed(including by PDF and facsimile signature) in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed will be deemed to be an original, and all such counterparts will be construed together and will constitute one Agreement.
10.12. Severability. If any portion of this Agreement is held to be invalid or unenforceable, there maining portions of this Agreement will remain in full force and effect.
Exhibit A
Service Level and Support Terms
These Service Level and Support Terms apply to any software-as-a-service product offering provided by Rygen to Customer as a Service (“SaaS Services”) pursuant to the General Terms and Conditions between Customer and Rygen and the applicableOrder Form (collectively, the “Agreement”). All capitalized terms not defined herein shall have the meaning given to them in the Agreement or OrderForm.
1. Definitions.
1.1. "Downtime” means that substantially all of the material functions of a SaaS Service are not accessible to and fully usable by Customer, excluding (i)Scheduled Maintenance in accordance with Section 2.4 (Scheduled Maintenance), (ii) EmergencyMaintenance in accordance with Section 2.5 (Emergency Maintenance), (iii) general unavailability or outages of the Internet or other generally commercially-available telecommunications networks and other Force Majeure Events, (iv) downtime caused by Customer’s failure to comply with its obligations under the Agreement, and (v) downtime caused by a failure of Customer’s systems, networks or equipment.
1.2. “Uptime”is a percentage calculated by subtracting the total number of minutes ofDowntime in an applicable month from the total number of minutes in such month, dividing that number by the total number of minutes in such month and multiplying the result by one hundred (100).
2. Service Levels and Support.
2.1. Support Overview. Rygen will provide support for the Services in accordance with this Section. Support includes assistance with defects, general usage inquiries, and guidance regarding the Services. Support is available during Rygen’s regular business hours, which are 8:00 a.m. to 7:00 p.m. Eastern Time, Monday through Friday, which may change from time to time in Rygen’s discretion, and excluding Rygen-observed holidays (“Standard Service Support Hours”).
2.2. Uptime Commitment. Rygen will commit to providing the SaaS Services to Customer with an Uptime of 99.8% on a month-to-month basis (the “Uptime Requirement”).
2.3. Severity Levels; Notification and Response Times. Upon detection or being made aware of Downtime, Rygen will assign a severity level based on the following table and notify Customer about the outage and resolution steps. Rygen will use commercially reasonable efforts to comply with the following response and resolution times based on the severity level:
Severity Level and Description
Severity 1
Catastrophic business impact. The SaaS Service is rendered completely inoperative or unavailable, or use of material features of the SaaS Service is impossible, with no alternative available.
Severity 2
Medium business impact. An error that impacts key portions of the SaaS Service, but a reasonable workaround exists, or Customer is able to continue to use key portions of the SaaS Service in an impaired manner.
Severity 3
Low business impact. Business functionality is substantially available, with minor or no impediments to the SaaS Service, or error is cosmetic in nature. The error has little-to-no impact on Customer’s access and use of the SaaS Service.
Target Response and Resolution Times
Severity 1:
Target Response: 2 hours
Target Resolution: 24 hours
Severity 2
Target Response: 1 business day
Target Resolution: 5 business days
Severity 3
Target Response: 5 business days
Target Resolution: Next planned update to the SaaS Service
2.4. Scheduled Maintenance. Rygen may conduct scheduled maintenance on the SaaS Services (including installing upgrades, fixes, or reconfigurations) (“Scheduled Maintenance”), provided, that, Rygen will use commercially reasonable efforts to (i) conduct such Scheduled Maintenance at off-peak times, and (ii) to provide Customer with five (5) business days’ advance written notice.
2.5. Emergency Maintenance. Rygen may perform emergency maintenance at any time without advance notice to Customer if required to address security vulnerabilities, mitigate ongoing attacks, or prevent imminent harm to the SaaS Services, Customer or Rygen’s other customers or service providers (“Emergency Maintenance”). Rygen will notify Customer as soon as reasonably practicable regarding any required Emergency Maintenance.
3. Service Credits.
3.1. Generally. Each failure to meet the Uptime Requirement or the response or resolution times set forth in Section 1.2(Service Levels) will be a “Service Level Failure.”
3.2. Service Level Credits. In the event Rygen fails to meet the Uptime Requirement in any calendar month, Rygen will issue to Customer a service credit for such month equal to 1% of the monthly invoiced fees for every 0.1% by which availability falls below the Uptime Requirement, up to a maximum credit of 10%for such month (“Service Level Credit”). Any Service Level Credits will be reflected in the next invoice issued to Customer. Customer acknowledges and agrees that Service Level Credits will be Customer’s sole and exclusive remedy for any failure by Rygen to meet the Uptime Requirement.