GENERAL TERMS AND CONDITIONS
This General Terms and Conditions is an agreement (the “Agreement”) between RIA WorkSpace and Customer. This Agreement governs provision of RIA WorkSpace services as defined in the Order Form and is effective as of the date of execution of an Order Form. RIA WorkSpace and Customer are sometimes referred to herein individually as a “Party” or together as the “Parties.” This Agreement is deemed attached to and made an integral part of the Order Form.
a. Affiliate means those entities that are controlled by, controlling, or under common control with Customer. The term “control” as used in this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
b. Authorized User means an employee, contractor, agent, or consultant who works for or is affiliated with a Customer and has a need to access and use the Software solely for the Customer’s benefit.
c. Hardware means computer and telecommunications hardware products manufactured by third parties.
d. Licensed Products means the Third Party Software designated in an Order.
e. Order means an order requested by Customer and accepted by RIA WorkSpace for Services or Licensed Products, whether oral or in writing. Order Form means an Order that has been confirmed in writing either signed by the parties or confirmed by email; Orders for new Licensed Products must be by an Order Form.
f. Services means the installation, implementation, training and consulting services, to be provided to Customer by RIA WorkSpace, as identified in an Order.
g. Third Party Software means the object code of the computer programs identified in an Order as third party software. Third Party License Terms means the end user license terms that are either appended to or identified by reference in the Order Form or accompanies the Third Party Software.
2. LICENSED PRODUCTS AND SERVICES.
a. Orders. All Services performed by RIA WorkSpace and Licensed Products provided by RIA WorkSpace, to Customer shall be governed by these General Terms and Conditions agreed to in an Order Form, confirmed in writing, whether electronically or by hard copy. If there is a discrepancy between the terms of a specific Order and the Agreement, the specific Order shall take precedence with respect to the subject matter of the Order (but not other Orders).
b. Time & Materials. Unless otherwise expressly set forth in an Order Form, all Services are provided on a time and materials basis. Unless expressly stated otherwise in the Order Form, RIA WorkSpace does not guarantee that Services performed on a time and materials basis can be fully performed for any “not to exceed” or maximum price set forth in the Order. RIA WorkSpace shall assign an adequate number of personnel to perform the Services.
c. RIA WorkSpace Products. Subject to the terms and conditions of this Agreement and the applicable Order Form, RIA WorkSpace grants to Customer for the benefit of Customer, and Customer accepts, a non-exclusive, non-assignable, non-transferable, and (except as otherwise set forth in this Agreement) subscription right and license to use the RIA WorkSpace Product listed on an Order Form only (i) for internal use by Authorized Users, (ii) at the Customer facility or Customer Data Center, (iii) as further limited by the Order Form, and (iv) in accordance with the associated documentation.
d. Third Party Software. Use of the Third Party Software is subject to the Third Party License Terms, together with the license limitations, set forth in the applicable Order Form.
e. Limitations. Without expanding the rights granted in this Section 2, Customer shall not directly or indirectly:
i. use the Licensed Products or any of RIA WorkSpace or its suppliers’ Confidential Information to create any software, service or documentation that is in any way similar to the Licensed Products;
ii. encumber, transfer, rent, donate, assign, lease, or otherwise use the Licensed Products in any time-sharing or service bureau arrangement;
iii. except as expressly provided in this Agreement, copy, reproduce, market, sell, distribute, sublicense, manufacture, adapt, create derivative works of, translate, localize, port, or otherwise modify or commercially exploit the Licensed Products;
iv. decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Licensed Products, including use of any similar means to discover the source code of the Licensed Products, to discover the Confidential Information therein, or to otherwise circumvent any technological measures that control access to the Licensed Products; or
v. alter or remove any printed or on-screen copyright, trademark, patent, proprietary, or other legal notice contained on or in any Licensed Products or copies thereof.
f. Copies. Customer may make copies of its data generated by the Licensed Products, consistent with Customer’s normal archival, backup and testing procedures. Customer may only make copies of Third-Party Software as provided by the Third-Party License Terms. Customer may make a reasonable number of copies of the Documentation solely for its own internal business purposes to support use of the Licensed Products in compliance with the terms of this Agreement. All proprietary rights and notices must be reproduced and included on all copies of the Licensed Products and Documentation.
g. Timeliness. Time is of the essence in this Agreement. The parties intend for the Services to be performed in accordance with the time frames set forth in the applicable Order Forms and this Agreement.
3. ADMINISTRATION OF SERVICES.
a. Services Generally. RIA WorkSpace shall perform the Services as required by and pursuant to the Agreement and shall organize, supervise, coordinate and direct the Services in a competent and efficient manner, applying such skills and expertise as necessary to comply with all requirements of the Agreement and applicable law. RIA WorkSpace shall select and be solely responsible for the means, methods, techniques and procedures for the Services.
b. Customer Administrator. Customer shall provide in writing the name of the administrator who is authorized by Customer to communicate with RIA WorkSpace regarding users, user setup, system configuration and similar functions. Customer may change the named administrator only in writing, whether electronic or hard copy.
c. Customer End Users. End Users may contact RIA WorkSpace Support directly. However, End Users shall not be authorized to order Services or additional Licensed Products unless designated as a Customer Administrator, in writing per Section 3(b) above.
d. Cooperation and Access.
i. Customer shall provide RIA WorkSpace with good faith cooperation and access to such information, facilities, personnel, and equipment as may be reasonably required by RIA WorkSpace in order to provide the Services, including, but not limited to, providing data, access, information, and software interfaces to Customer’s applications as may be reasonably requested by RIA WorkSpace from time to time. Customer acknowledges and agrees that RIA WorkSpace performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Services. RIA WorkSpace shall be entitled to rely on all decisions and approvals of Customer.
ii. Access to the database server, application server, and a client workstation must be provided using a mutually agreed remote access application. Service milestones may be adversely affected if remote access is not provided. The parties will mutually agree upon and coordinate all security protocols involving remote access. In the event Customer desires RIA WorkSpace to adhere to or use a specific security protocol and doing so will require RIA WorkSpace to incur a material expense, Customer shall reimburse RIA WorkSpace for such expense in accordance with section 4(c).
iii. Any Services requested by Customer through RIA WorkSpace Support procedures that are not within the scope of Support or that are outside the scope of the Services described in the applicable Order Form (collectively, “Additional Services”) may be subject to an additional charge at Time and Materials Rates, at RIA WorkSpace discretion.
e. On Site Personnel. While at the Customer facilities or Customer data center, RIA WorkSpace shall cause its personnel to comply with all of Customer’s security policies and other rules and regulations that are provided to RIA WorkSpace. In the event that Customer determines in good faith that the continued assignment to Customer’s account of one of RIA WorkSpace personnel is not in the best interests of Customer, then Customer shall give RIA WorkSpace written notice to that effect. After receipt of such notice, RIA WorkSpace shall have a reasonable period of time in which to investigate the matters stated in such notice, discuss its findings with Customer, and resolve any problems with such person. If, following such period, Customer requests replacement of such person, RIA WorkSpace shall replace that person with another person of suitable ability and qualifications. RIA WorkSpace personnel shall be subject to immediate removal from the premises or immediate removal from the Customer account for serious misconduct in the same manner as Customer employees and in accordance with applicable Customer security policies.
f. Compliance with Laws. RIA WorkSpace shall comply at its own expense with all applicable laws and regulations relating to its performance of Services under this Agreement.
g. Subcontractors. RIA WorkSpace may subcontract any work under this Agreement to any third party without Customer’s prior written consent. RIA WorkSpace shall remain responsible for the performance, acts, and omissions of any subcontractors.
4. FEES, EXPENSES, AND PAYMENT.
a. License Fees. Unless otherwise provided in an Order Form, Customer shall pay the License Fees due and payable upon the effective date of the Order Form.
b. Service Fees. Customer shall pay the fees for Services as provided on the applicable Order Form (“Support Fees”). Unless otherwise specified on the Order Form, Support Fees shall be based on RIA WorkSpace standard hourly rates then in effect, in sixty-minute increments (“Time & Materials”), to be invoiced as such Services are rendered, on a monthly basis.
c. Expenses. Customer shall reimburse RIA WorkSpace for:
i. all costs and expenses incurred by RIA WorkSpace and associated with performance of any on-site Services which are necessary and approved in advance in writing. If Customer’s travel and expense policy is provided to RIA WorkSpace, RIA WorkSpace reimbursements for such expenses shall not exceed the amounts reimbursable for Customer’s own employees; and
ii. third-party hardware or software incident fees for Services provided by such third-party hardware or software manufacturer, when Customer has authorized RIA WorkSpace to place support calls on its behalf to such third-party hardware or software provider.
d. For all other Services, RIA WorkSpace shall be responsible for all costs and expenses necessary to provide the Services to Customer.
e. Payment Terms. Automatic payment is required unless other payment terms are agreed in writing at the time of this Agreement. Automatic payment is defined as a major credit card or direct bank debit, through which Client authorizes RIA WorkSpace to process payment as provided herein. Client will maintain a valid credit card on file at all times. If any charge attempt is denied, RIA WorkSpace will notify Client and if payment is not received with fifteen (15) days thereafter, then RIA WorkSpace may suspend the Services.
f. Late Payment and Collection. Any non-disputed amount not paid when due shall accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law until paid. If Customer disputes an invoice, it must provide notice to RIA WorkSpace within thirty (30) days of the invoice, designating which part of the invoice is disputed, the reason for the dispute, and payment for the undisputed portion. If Customer’s account is in arrears for thirty (30) days or more, RIA WorkSpace may suspend the provision of Services until such time as Customer’s account is brought current. RIA WorkSpace will charge the maximum fee allowed by state law for any returned check. The rights in this Section are in addition to any other rights under this Agreement, at law, or in equity.
g. Taxes. Customer agrees to pay all personal property, sales, use and other taxes (excluding taxes based upon RIA WorkSpace net income) and license and registration fees, and other assessments or charges levied or imposed by any governmental body or agency as a result of the execution or performance of the Agreement. Any amount due from Customer under this section shall be paid directly by Customer, where appropriate, or shall be reimbursed to RIA WorkSpace upon payment thereof by RIA WorkSpace. In the event Customer or the transactions contemplated by the Agreement are exempt from the foregoing taxes, fees, assessments or charges, Customer agrees to provide RIA WorkSpace as evidence of such tax exempt status, proper exemption certificates or other documentation acceptable to RIA WorkSpace.
5. WARRANTIES; DISCLAIMER.
a. HARDWARE AND THIRD PARTY SOFTWARE. RIA WORKSPACE MAKES NO WARRANTIES AS TO HARDWARE OR SOFTWARE MANUFACTURED OR CREATED BY THIRD PARTIES. GENERALLY, SUCH HARDWARE AND SOFTWARE IS COVERED BY A LIMITED WARRANTY PROVIDED DIRECTLY BY SUCH THIRD PARTIES. THE ONLY WARRANTY WITH RESPECT TO FUNCTIONALITY OF HARDWARE AND SOFTWARE USED BY CUSTOMER AND MANUFACTURED OR CREATED BY THIRD PARTIES IS THAT LIMITED WARRANTY, IF ANY, GIVEN BY THE MANUFACTURER OR CREATOR. RIA WORKSPACE ONLY STATES THAT IT HAS REVIEWED THE HARDWARE AND SOFTWARE SPECIFICATIONS SUPPLIED BY THE MANUFACTURER OR CREATOR OF THE PRODUCT(S) AT ISSUE AND THAT IT HAS CONFIGURED OR UTILIZED SAID HARDWARE AND SOFTWARE IN ACCORDANCE WITH THE MANUFACTURERS’ AND CREATORS’ WRITTEN REPRESENTATIONS AND RECOMMENDATIONS. TO THE EXTENT THAT THIRD PARTY WARRANTIES FOR HARDWARE PROVIDED HEREUNDER ARE AVAILABLE TO CUSTOMER AS A THIRD PARTY BENEFICIARY, RIA WORKSPACE WILL COOPERATE WITH SUCH EXTENSION TO CUSTOMER IF REQUESTED AND PERMITTED BY THIRD PARTY PROVIDER.
b. RIA WorkSpace Services Warranty. For thirty (30) days after the performance of Services, RIA WorkSpace warrants that the applicable Services will be performed in a good and workmanlike manner, consistent with generally accepted industry standards. Customer shall notify RIA WorkSpace in writing within thirty (30) days after the Services are rendered if the Services fail to perform in accordance with this warranty. RIA WorkSpace shall, after receipt of Customer’s notice, re-perform the Services within a reasonable time. If RIA WorkSpace is unable to re-perform the Services as warranted, RIA WorkSpace shall refund the fees paid for the non-conforming Services.
c. RIA WorkSpace Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 5, NEITHER RIA WORKSPACE NOR ITS LICENSORS MAKES ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION, CONDITION, OR AGREEMENT WITH RESPECT TO THE LICENSED PRODUCTS, SUPPORT, OR THE SERVICES. RIA WORKSPACE AND ITS LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM USAGE, CONDUCT, OR COURSE OF TRADE. RIA WORKSPACE DOES NOT REPRESENT THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. RIA WORKSPACE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THIRD PARTY SOFTWARE.
d. Customer Warranty. Customer warrants that it owns or has the right to use any and all software programs in Customer’s possession, which software programs are to be integrated with the Licensed Products and Services to be provided pursuant to this Agreement. Customer is responsible for maintain all third party software not directly provided by RIA WorkSpace under this Agreement or any Order Form.
6. INDEMNITIES AND INSURANCE.
a. Customer Indemnity. Customer shall indemnify and hold RIA WorkSpace, its affiliates and subsidiaries and their respective directors, officers, employees and representatives, harmless from any and against any third party claims, damages, losses, liabilities, causes of action or injuries, together with all costs and expenses, including penalties, interest levied, reasonable attorneys’ fees and court costs, arising out of or resulting from:
i. any failure by Customer, its employees or representatives to comply fully with the obligations set forth in this Agreement, including without limitation obligations for payment of taxes or failure to obtain legally licensed software;
iii. the infringement of a third party copyright, trade secret, trademark, moral right or other proprietary right caused by the unauthorized use of any Licensed Product by Customer; or
iii. the gross negligence or intentional misconduct of Customer, Affiliate, or Customer employee, contractor or other personnel.
b. RIA WorkSpace Infringement Indemnity. RIA WorkSpace shall indemnify and hold Customer, Affiliates and subsidiaries and their respective directors, officers, employees and representatives, harmless from any and against any third party claims, damages, losses, liabilities, causes of action or injuries, together with all costs and expenses, including penalties, interest levied, reasonable attorneys’ fees and court costs, arising out of or resulting from a claim that a Licensed Product or Service infringes any patent, copyright, or trademark, or misappropriates any trade secret. If any Licensed Product or Service becomes, or in RIA WorkSpace opinion is likely to become, the subject of a claim of infringement, RIA WorkSpace may, at its sole option, (i) obtain for Customer the right to continue using the Licensed Product or Service; (ii) replace or modify the affected Licensed Product or Service so that it becomes non-infringing while providing substantially equivalent functionality; or (iii) if such remedies are not available on commercially reasonable terms as determined by RIA WorkSpace, terminate the license for the affected portion of the Licensed Product, terminate the Services to the extent of such claim of infringement and refund any pre-paid Service fees that pertain to the terminated Service. Notwithstanding any other terms in this Section, RIA WorkSpace shall have no liability for infringement claims if the alleged infringement is based on or arises from (w) combination or use of the Licensed Products with hardware, software, or other materials not provided by RIA WorkSpace, (x) the modification of the Licensed Product by anyone other than RIA WorkSpace or at RIA WorkSpace direction, (y) the use of the Licensed Product not in accordance with the documentation or this Agreement, or (z) the use of other than the then most current version of the Licensed Product if the use of the most current version of the Licensed Product would have eliminated the infringement. THE FOREGOING STATES RIA WORKSPACE ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
c. Other RIA WorkSpace Indemnity. RIA WorkSpace shall indemnify and hold Customer, Affiliates and subsidiaries and their respective directors, officers, employees and representatives, harmless from any and against any third party claims, damages, losses, liabilities, causes of action or injuries, together with all costs and expenses, including penalties, interest levied, reasonable attorneys’ fees and court costs, arising out of or resulting from the gross negligence or intentional misconduct of Customer, Affiliate, or Customer employee, contractor or other personnel.
d. Process. Each Party’s obligation to indemnify the other Party pursuant to this provision shall apply only to the extent that the Party seeking indemnification: (a) promptly after receipt of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which any of the Indemnified Parties shall seek indemnification, notifies the Indemnifying Party of such claim in writing; (b) allows the Indemnified Party to control, and to cooperate fully with the Indemnifying Party in the defense of, any such claim, investigation, trial, defense and settlement of such claim or any appeal arising there from, through its attorneys (provided that the Indemnified Party can participate in the defense at its own expense); and (c) does not enter into any settlement or compromise in respect of such claim without the Indemnifying Party’s prior written consent, such consent not to be unreasonably withheld or delayed, unless the settlement includes an unconditional general release of the indemnified Party. Failure to so notify the Indemnifying Party of a claim shall not relieve the Indemnifying Party of its obligations under this Section except to the extent that it can demonstrate that it was prejudiced by such failure.
e. Limitations on Indemnity. The indemnification obligations set forth in subsection 6(c) above a) shall be limited to the extent such indemnified obligation is caused by or is the fault of the indemnitee; and b) shall be considered actual damages and not subject to the limitations in section 7(c) below.
f. Insurance. During the Term, RIA WorkSpace shall maintain all insurance and/or bonds required by law or to cover its indemnification obligations hereunder, including but not limited to the following coverages:
i. Workers Compensation as prescribed by the law of any state in which the work is to be performed.
ii. Employer’s Liability with limits of at least $1,000,000 each accident/$1,000,000 each employee by disease/$1,000,000 policy limit by disease;
iii. Commercial General Liability, including contractual liability coverage, with limits of at least $1,000,000 per occurrence;
iv. Professional Liability for IT services and cyber liability with limits of at least $1,000,000 each incident / $1,000,000 policy limit; and
v. All Risks Property insurance on a replacement cost basis insuring RIA WorkSpace personal property at any Customer facilities.
g. RIA WorkSpace and its insurers shall waive any and all rights of subrogation against Customer. Customer and its insurers shall waive any and all rights of subrogation against RIA WorkSpace. All policy deductibles shall remain the responsibility of RIA WorkSpace, its agents or its subcontractors. All insurance provided by RIA WorkSpace shall be written by companies authorized to do business in the state or states where the work is to be performed. Upon request, RIA WorkSpace shall provide to Customer certificates of insurance evidencing the required coverages.
7. Force Majeure and other Limitations of Liability.
a. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the effected party’s performance shall be extended for the period of delay or inability to perform due to such occurrence, and provided further that the other party may terminate this Agreement if such condition continues for a period of 180 days. This provision shall not apply to payment obligations.
b. Limitation of Remedy. EXCEPT AS PROHIBITED BY LAW, RIA WORKSPACE, ITS LICENSORS, AND OTHER SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ALL ORDER FORMS, ADDENDA, OR AMENDMENTS THERETO, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, INCLUDING A BREACH THEREOF OR INCLUDING WITHOUT LIMITATION, DAMAGES OR LIABILITIES FOR LOST PROFIT, LOST REVENUE, LOSS OF USE, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA, OR CLAIMS BY ANY THIRD PARTY REGARDLESS OF WHETHER SUCH DAMAGES OR LIABILITIES HAVE BEEN COMMUNICATED TO RIA WorkSpace AND REGARDLESS OF WHETHER RIA WORKSPACE HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES OR LIABILITIES. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation may not apply to Customer. RIA WORKSPACE MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
c. Limitation of Liability. EXCEPT AS PROHIBITED BY LAW OR EXCEPT AS PROHIBITED BY LAW OR FOR CLAIMS ARISING UNDER SECTION 8 [CONFIDENTIALITY] AND SECTION 6 [INDEMNITIES AND INSURANCE], THE CUMULATIVE, AGGREGATE LIABILITY OF RIA WORKSPACE, ITS LICENSORS, AND OTHER SUPPLIERS (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THIS AGREEMENT) TO CUSTOMER AND ANY THIRD PARTIES FOR ALL CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ALL ITS ORDER FORMS, ADDENDA OR AMENDMENTS THERETO, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO RIA WORKSPACE FOR THE CALENDAR QUARTER IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM ARISES. IN NO EVENT WILL RIA WORKSPACE BE LIABLE TO CUSTOMER AND ANY THIRD PARTIES WITH RESPECT TO CLAIMS OF ANY NATURE RELATED TO THIRD PARTY SOFTWARE NOT PROVIDED BY RIA WORKSPACE.
d. Data Storage, Backup and Copies. RIA WorkSpace utilizes highly redundant storage technologies such as SAN, RAID-5 and RAID-10 Disk Arrays combined with proactive monitoring to insure data availability. Customer may make copies of its data generated by the Licensed Products, consistent with customer’s normal archival, backup and testing procedures. Customer may make a reasonable number of copies of the Documentation solely for its own internal business purposes to support use of the Licensed Products in compliance with the terms of this Agreement.
a. Definitions. “Confidential Information” means any information that is of value to its owner, or is required to be kept confidential by contract or otherwise, and is treated as confidential, that is disclosed by or on behalf of the discloser or otherwise directly or indirectly obtained from the discloser. Confidential Information includes, but is not limited to, the following: trade secrets, proprietary information, technical processes and formulas, the Licensed Products in source code, object code, and any other form, Documentation, benchmark and performance test results, product designs, any sales, cost, and other unpublished financial information, product and business plans, projections and marketing data, the terms and conditions (but not the existence) of this Agreement, and any information that would reveal the identity of any client of Customer. Confidential Information does not include information (i) generally known to the public through no act or omission of recipient; (ii) independently developed by the recipient without use of or reference to the discloser’s Confidential Information; and (iii) obtained by recipient from any third party not owing any confidentiality obligation to the discloser. All files, data, records, documents, manuals, procedures and similar items relating to the accounting business of Customer and its clients, whether prepared by Customer or otherwise and including copies of the aforementioned coming into the possession of RIA WorkSpace shall be and remain the sole and exclusive property of Customer.
b. Non-disclosure. By virtue of this Agreement, the parties may be exposed to or provided with certain Confidential Information of the other party. Each party will protect the other’s Confidential Information from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own Confidential Information, but in no event less than a reasonable amount of care. Except as required by law, neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement and as may be required to report to its affiliates, legal, and financial advisors. Except as otherwise expressly set forth in this Agreement, no Confidential Information shall be disclosed to third parties by the receiving party without the prior written consent of the disclosing party; provided, however, that the receiving party may disclose Confidential Information to those of the receiving party’s attorneys, auditors, insurers, vendors and subcontractors who have a need to have access to such information in connection with their engagement (“Outside Recipients”); provided further that such persons and entities shall be bound by non-disclosure obligations and use limitations that are no less protective than those set forth herein and the receiving party shall be responsible to the disclosing party for unauthorized disclosures or use by such Outside Recipients. Each party agrees that if it is required by law to disclose the other party’s Confidential Information, such disclosing party must first give written notice of such required disclosure to the other party and such other party shall have a reasonable opportunity to prevent or limit the third party disclosure. The responsibilities under this Section 8 shall continue during the Term of this Agreement and for two years thereafter for Confidential Information that is not a trade secret under law and for trade secrets shall continue for so long as such Confidential Information remains a trade secret.
c. Injunctive Relief. The parties agree that monetary damages may not be an adequate remedy if Section 8(b) is breached and, therefore, either party, in addition to any other legal or equitable remedies, shall be entitled to seek an injunction or similar equitable relief against such breach or threatened breach.
d. Statistical Analysis. RIA WorkSpace shall have the right to compile, license, and distribute statistical analyses and benchmarking reports utilizing aggregated data derived from Customer’s use of the Software. Such reports and analyses shall be appropriately redacted by Customer and shall not identify Customer or any client or account of Customer, nor shall they use any financial data specifically regarding Customer or a client of Customer.
9. DISPUTE RESOLUTION.
a. Arbitration. If a dispute arises between the parties that cannot be resolved informally, the parties agree to first attempt to negotiate the dispute in good faith, such negotiation to be initiated by written notice from one party to the other to initiate a meeting or conference call within ten (10) days including a Vice President (or equivalent) from each party. If the matter cannot be resolved by negotiation, then RIA WorkSpace and Customer shall submit to binding arbitration any dispute resulting from or arising from the performance of this Agreement and the award rendered by the arbitrators shall be final and binding on all parties to the proceeding. Judgment on any award may be entered by either party in any court of competent jurisdiction. The provisions hereof shall be a complete defense to any suit, action, or proceeding instituted in any federal, state, or local court or before any administrative tribunal with respect to any controversy or dispute arising under this Agreement and which is arbitrable as herein set forth. Notwithstanding the foregoing, either party may seek injunctive relief in a court of law or equity to assert, protect or enforce its rights in: (i) any intellectual property, including without limitation, any rights it has in patents, copyrights, trademarks, or trade secrets; or (ii) Confidential Information as described in this Agreement.
b. Process. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA”) within one year after the expiration of the cure period set out in Section 11(b) but not thereafter. Any such arbitration shall be directed by the AAA and held in a) Chicago, Illinois, if initiated by Customer; or b) in the city of Customer’s principle office, if initiated by RIA WorkSpace. Notwithstanding the foregoing or the then-current specified commercial rules of the AAA, the following shall apply with respect to the arbitration proceeding: (a) the arbitration proceedings shall be conducted by one (1) arbitrator selected by the parties, provided, if the parties fail to make such designation within five (5) days after receipt by the AAA of the demand for arbitration, the AAA shall make the appointment in its sole discretion (provided such arbitrator shall have a minimum of ten (10) years’ experience and knowledge of software outsourcing and hosting agreements); and (b) the existence, subject, evidence, proceedings and rulings resulting from the arbitration proceedings shall be deemed Confidential Information, and shall not be disclose by either party, their representatives, or the arbitrator except: (i) to the professional advisors of each of the parties; (ii) in connection with a public offering of securities of either of the parties; (iii) as ordered by any court of competent jurisdiction; or (iv) as required to comply with any applicable governmental statute or regulation. The prevailing party shall be entitled to recovery of its arbitration fees paid to the AAA and its reasonable and necessary attorneys’ fees and costs related to such arbitration.
10. OTHER LEGAL TERMS.
a. Affiliates and Authorized Users. Customer shall cause all Affiliates and Authorized Users to be bound by the terms and conditions of this Agreement that are applicable to Customer, and any default by any Affiliate or Authorized User of the terms and conditions of this Agreement shall be a default of Customer.
b. Assignment. Neither party may assign this Agreement without the prior written consent of the other party; notwithstanding the foregoing, however, either party may assign this Agreement in its entirety without consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sales of all or substantially all of its assets not involving a direct competitor of the other party, provided that the assignee gives written notice of such transaction thirty (30) days thereafter and subject to any restrictions on the assignment of Third-Party Software in the Third-Party License Terms. This Agreement will inure to the benefit of and be binding upon each of the successors and permitted assigns of the parties hereto.
c. Authority. The parties and each individual executing this Agreement on behalf of the parties hereto represent and warrant that such individual is duly authorized to execute and deliver this Agreement on behalf of his or her party.
d. Construction. In the interpretation of this Agreement, words importing the singular or plural number shall include the plural and singular number respectively, words denoting gender shall include all genders and references to persons shall include corporations or other entities and vice versa. The word “including” and its derivatives, (such as “include” and “includes”) means including, without limitation, whether or not capitalized and whether or not “without limitation” or words of similar meaning are included in other provisions of this Agreement. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another, because the parties participated equally in preparing this Agreement. Unless the context otherwise specifically requires, all references to sections of this Agreement shall refer to all subsections thereof.
e. Delivery. Delivery of each Licensed Product shall be deemed to occur upon the earlier to occur of (i) initial delivery of the Licensed Product by RIA WorkSpace to a third party shipper addressed to Customer; or (ii) the initial date the Licensed Product or license keys are made available by RIA WorkSpace for download by Customer.
f. Entire Agreement. This Agreement (together with the Order Forms sets forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. In the event a conflict exists between this document and any Order Form or attachment, the Order Form shall first govern, then the terms of this Agreement shall govern over any other documents. RIA WorkSpace may revise and update this Agreement from time to time and shall provide Customer notice of any such changes. All changes are effective immediately when notice is deemed received by Customer, unless otherwise specified. Customer’s continued use of the Services without an effective Termination indicates Customer’s acceptance of the changes.
g. Export. Customer hereby agrees to refrain from knowingly, directly or indirectly, without prior written consent, if required, of the office of Export Administration of the US Department of Commerce, Washington D.C. 20230, export or transmit any of the Licensed Products to any country, person or entity to which such transmission is restricted.
h. Governing Law. The validity, construction, and performance of the Agreement and the legal relations among the parties to the Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, excluding that body of law applicable to choice of law.
i. No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
j. Non-solicitation. Customer and RIA WorkSpace agree that neither party shall hire any employee of the other as an employee, contractor or in any other capacity within twelve months from the last date such person provided Services hereunder without the other party’s written consent. This provision shall not apply to employees, consultants, or subcontractors who reply solely to a published solicitation for employment.
k. Notices. All notices under this Agreement shall be given in writing and shall be delivered either by hand, by internationally recognized overnight courier, fees pre-paid by sender, addressed to the receiving party at the address set forth at the signature blocks below, or at such other address as may be designated from time to time. Notices shall be deemed delivered upon the earlier of actual receipt or three (3) days after deposit of such notice, properly addressed and delivery fees paid, with the overnight courier.
l. Severability. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified, or severed to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect.
m. Third Party Beneficiaries. All rights and benefits afforded to RIA WorkSpace under this Agreement shall apply equally to the owner of the Third Party Software with respect to the Third Party Software, and such third party is an intended third party beneficiary of this Agreement, with respect to the Third Party Software. Except as set forth in this Section, there are no express or implied third party beneficiaries of this Agreement.
n. Waiver. Except where otherwise provided, the waiver, delay, or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.
11. TERM AND TERMINATION.
a. Term. This Agreement shall commence on the Effective Date and shall continue for the Initial Term stated on the Cover Page. This Agreement shall automatically renew for additional one (1) year periods thereafter (each a “Renewal Term”), unless earlier terminated as provided below. Collectively, the Initial Term and a Renewal Term may be referred to herein as the “Term.”
b. Termination. Except as where otherwise provided in this Agreement, this Agreement may be terminated with notice to the other party as follows:
i. By RIA WorkSpace, if any substantial change takes place in Customer’s management, ownership, or control resulting in management, ownership, or control of Customer by a competitor of RIA WorkSpace, or by a company or other entity with a division or subsidiary that is a competitor of RIA WorkSpace pursuant to Section 10(b);
ii. By either party with written notice to the other party sixty (60) days prior to the end of the Initial Term or any Renewal Term;
iii. By either party, if the other party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice thereof (except with respect to Customer’s payment obligations); and
iv. By either party, if any assignment is made by the other party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of the other party’s property, or if the other party files a voluntary petition under federal bankruptcy laws or similar state statutes or such a petition is filed against the other party and is not dismissed within sixty (60) days.
c. Termination of Order Form. Where the non-breaching party has a right to terminate this Agreement, the non-breaching party may at its discretion either terminate this Agreement or the applicable Order. In the event that each and every Order is terminated, this Agreement shall automatically terminate. In the event that this Agreement is terminated as provided herein, each and every Order to this Agreement shall automatically terminate. All rights of termination are in addition to any other rights of the parties under this Agreement, at law, in equity, or otherwise.
d. Effects of Termination. Upon termination of this Agreement for any reason, all rights and obligations of the parties hereunder and all licenses and services shall cease, except as follows:
i. Customer’s liability for any charges, payments or expenses due to RIA WorkSpace that accrued prior to the termination date shall not be extinguished by termination, and such amounts shall be immediately due and payable.
ii. Customer shall deliver to RIA WorkSpace, at Customer’s expense, all originals and copies of the (i) Licensed Products; (ii) Documentation; and (iii) Confidential Information of RIA WorkSpace in the possession or under the control of Customer. Customer shall certify in writing to RIA WorkSpace within ten days following termination that it has complied with this Section 11(d)(I).
iii. RIA WorkSpace shall return to Customer any Confidential Information of Customer in the possession or under the control of I RIA WorkSpace, including, but not limited to Customer data residing on RIA WorkSpace hardware (in the data format as stored on such hardware). RIA WorkSpace shall have no obligation to provide additional transition services to transition Customer except pursuant to a written Order signed by both parties.
iv. The provisions of Sections 1 (Definitions), 2(e) (Limitations), 4 (Fees, Expenses and Payment) for accrued but unpaid fees, 6 (Indemnities and Insurance), 7(b) (Limitation of Remedy), 7(c) (Limitation of Liability), 8 (Confidentiality), 9 (Dispute Resolution), 10 (Other Legal Terms; and 11(d) (Effects of Termination) shall survive any termination of this Agreement.