These RapidRatings Resale Customer Terms and Conditions (“Terms”) and the policies and other documents referenced in these Terms, together form an agreement (“Agreement”) between you (“Customer,” “you,” or “your”) and Rapid Ratings International, Inc. (“RapidRatings,” “we,” “us,” or “our”).
RapidRatings works with a variety of third parties (“Resellers”) in our ecosystem to market, sell, and deliver our services and other offerings (“RapidRatings Services”) to customers, often as part of integrated solutions with other services and offerings of the Reseller (“Reseller Offerings”). While you may have entered into a separate agreement with a Reseller covering the Reseller Offerings (“Reseller Agreement”), this Agreement applies to the RapidRatings Services. RapidRatings is willing to allow you to access and use the RapidRatings Services, whether alone or as part of a Reseller Offering, only if you agree to be bound by this Agreement. See Section 8.3 for Order of Precedence and Amendments.
If you are contracting directly with RapidRatings (or interested in doing so), the direct contract is a different agreement found at www.rapidratings.com/terms.
This Agreement will form a binding legal agreement between you and RapidRatings as of the date you first accept this Agreement, either by 1) signing an agreement with a Reseller that incorporates this Agreement or 2) clicking a field or otherwise electronically indicating acceptance of this Agreement on behalf of a company or legal entity (the “Effective Date”).
You and RapidRatings are each a “Party” to this Agreement and together are the “Parties” to this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. ALL USE OF THE RAPIDRATINGS SERVICES IS SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT. BY ACCESSING OR USING THE RAPIDRATINGS SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. If you do not agree to this Agreement, or do not have the authority to accept this Agreement, you must not accept this Agreement or use the RapidRatings Services.
SECTION 1. DEFINITIONS.
1.1 “Confidential Information” means all information regarding a Party’s business or affairs, including, business concepts, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, customer or supplier lists, methods of operation, or other information, whether in oral, written, or electronic form, designated as confidential or that is disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be deemed Confidential Information: (i) information that is or becomes generally known to the public through no fault of either Party; (ii) information with regard to a Party that was rightfully known by the other Party prior to commencement of discussions regarding the subject matter of the Agreement; (iii) information that was independently developed by a Party without use of or reference to the Confidential Information of the other Party; or (iv) information rightfully disclosed to a Party by a third party without continuing restrictions on its use or disclosure.
1.2 “Documentation” means the user manuals, standard policies, training materials, and other materials describing the use and function of the Subscription Services. Documentation does not include the Subscription Reports.
1.3 “Order” means the ordering document specifying Subscriptions Services purchased by Customer that is entered into between Customer and Reseller under the Reseller Agreement.
1.4 “Subscription Fees” means the fees stated on the applicable Order.
1.5 “Subscription Reports” means the reports authored by RapidRatings and made accessible through the Subscription Service, such as FHR® reports. Subscription Reports does not include the Documentation.
1.6 “Subscription Services” means the RapidRatings Services purchased by Customer under an Order.
1.7 “Subscription Term” means the period of time during which the Customer may access the applicable Subscription Services, as set forth in an applicable Order.
1.8 “User” means an employee, contractor, or agent of Customer who is authorized by Customer to use the Subscription Service on behalf of Customer and is provided with a login credential for the Subscription Services.
SECTION 2. SUBSCRIPTION SERVICES.
2.1 Access to Subscription Service. Subject to Customer’s compliance with the terms and conditions of this Agreement, RapidRatings hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right for the Subscription Term to access and use the Subscription Services as set out herein solely for Customer’s internal business purposes. Customer’s access and use under this Section extends only to the number of Users described in the applicable Order.
2.2 Restrictions. The Subscription Services and other RapidRatings Services, and the software, databases, hardware, and other technology used by or on behalf of RapidRatings to operate the Subscription Services and other RapidRatings Services, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute the valuable trade secrets of RapidRatings. Without limitation, Customer shall not, and shall not permit any third party to: (a) use or access and RapidRatings Services other than the Subscription Services; (b) use the Subscription Services in any manner not expressly permitted by this Agreement or in violation of applicable law; (c) attempt to or access, reproduce, commercialize, use any other data, software, or services not expressly part of this Agreement, such as to access information of third parties without express written authorization or to benchmark or develop a competitive product or service; (d) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Subscription Services; (e) copy, reproduce, distribute, publish, or otherwise make available copies or extracts in any medium of the Subscription Services, except that Users may download, use, and copy Subscription Reports for Customer’s internal (confidential) use only; or (f) circumvent or attempt to circumvent any contractual usage limit, use to excess, or otherwise interfere with RapidRatings’ ability to provide the Subscription Services or other customer’s use or enjoyment of the Subscription Services.
2.3 Service Content. The Subscription Services may offer access to Subscription Reports, data, information, and other content (“Service Content”), including data, information, and other content made available by other users of the Subscription Services and third parties. All Service Content is for informational purposes only. Customer is solely responsible for verifying the accuracy and completeness of all Service Content, as well as the applicability and suitability of any Service Content to your intended use. Subject to your compliance with this Agreement, you may access the Service Content made available to you through the Subscription Services solely for your own business use in connection with your use of the Subscription Services. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Service Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Service Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Service Content. Without limiting the foregoing, RapidRatings will not be held liable to you or any other third party for any Service Content (including your Customer Content) under the Communications Decency Act (47 U.S.C. § 230).
2.4 Customer Content. Customer is solely responsible for all data, information, and other content that you may provide through the Subscription Services (your “Customer Content”). As between Customer and RapidRatings, Customer retains ownership of your Customer Content. However, in addition to the permissions and consents granted to RapidRatings, by providing or making available your Customer Content through the Subscription Services, Customer grants RapidRatings a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, sublicensable license to store, host, reproduce, access, use, distribute, transmit, modify create derivative works of and display all your Customer Content for use with the Subscription Services and/or Subscription Reports. In addition, Customer waives all moral rights in your Customer Content or warrant that all moral rights applicable to such content have been waived. Customer represents and warrants that your Customer Content: (1) will not violate this Agreement or any applicable laws; (2) does not constitute an infringement or misappropriation of the intellectual property or other rights of any third party; (3) will not advocate illegal activity; (4) is not false, misleading, or inaccurate; or (5) is not (or could not be considered) junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. RapidRatings is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of your Customer Content. Customer agrees that you have all right, title, interest, and consents in and to your Customer Content necessary to allow RapidRatings to use your Customer Content for the purposes stated in this Section.
2.5 Users; Service Increases. Customer shall have the right to purchase access to other RapidRatings Services and/or increase the number of Users by making a request to RapidRatings and paying the additional Subscription Fees set forth on the applicable Order. RapidRatings reserves the right to prorate a new User for the portion of a Subscription Term remaining at the time a new User was added, such that any added User access will terminate or expire on the same date as a prior User group. The following User(s) are entitled to use and access the Subscription Services: (a) Primary Users have access to the full suite of online tools, reports and analytics purchased by Customer, and Primary Users have access to RapidRatings' Client Success staff via telephone and e-mail Monday through Friday 9am to 7 pm Eastern Time; and (b) Secondary Users have access to the full suite of online tools, reports, and analytics purchased by Customer but must channel all Client Success requests through a Primary User. Quantities of Primary and Secondary Users will be identified in each applicable Order.
2.6 Compliance and Monitoring. Customer will be responsible for each User’s, and for any employees and contractors with access to the Subscription Reports, compliance with this Agreement. It is Customer’s responsibility to monitor credentials, password usage, and otherwise prevent unauthorized access to or use of the Subscription Services and to promptly notify RapidRatings if unauthorized access or use is detected or suspected. RapidRatings reserves the right to monitor and audit Customer’s use of the Subscription Services to ensure Customer’s compliance with this Agreement and to confirm the access to the Subscription Service does not exceed the purchased number of Users. If RapidRatings reasonably determines that the number of User’s exceeds the number of purchased Users, RapidRatings may invoice Customer for such overuse.
2.7 Modifications. RapidRatings reserves the right, in its sole discretion modify any aspect of the Subscription Services and access requirements at any time without notice to Customer. For clarity, nothing in this Section supersedes the warranty provisions of Section 5. Customer agrees that its purchases and obligations are not contingent on the delivery of any features or functionality in the future or made in reliance on any oral or written representations made by RapidRatings regarding features or functionality that it may add in the future.
2.8 RapidRatings Support Services & Service Level Agreements. Support services provided to Customer under this Agreement and the sole service level agreements applicable to the Subscription Services provided by RapidRatings under this Agreement are attached hereto and incorporated herein as Exhibit A.
SECTION 3. PROPRIETARY RIGHTS.
3.1 Ownership of Intellectual Property Rights. RapidRatings owns all right, title and interest, including all intellectual property rights, to all Technology, including the Subscription Services, Subscription Reports, Documentation, and to any RapidRatings Confidential Information. Subject to the limited rights expressly granted hereunder, RapidRatings, including RapidRatings licensors, hereby reserve all rights not expressly granted to Customer in this Agreement, and Customer will not acquire any such rights, whether by virtue of this Agreement, operation of law, estoppel, or otherwise. Customer will notify RapidRatings if it becomes aware of any potential infringement or misappropriation of RapidRatings rights and shall provide all assistance and support relating thereto. Customer agrees to cooperate with RapidRatings enforcement of its intellectual property rights. Customer hereby irrevocably assigns to RapidRatings all rights and interest in and to any suggestions or, enhancement requests, recommendations, or corrections related to the Subscription Services or other Technology. Nothing in this Agreement or otherwise will be construed to impair or limit RapidRatings right to enforce its intellectual property rights against any third party.
3.2 Confidential Information. Each Party shall use commercially reasonable efforts to prevent the unauthorized use, disclosure, or publication of the other Party’s Confidential Information and treat the other Party’s Confidential Information with the same degree of care that it uses to protect the confidentiality of its own Confidential Information but nothing less than a reasonable standard of care. Each Party may disclose the Confidential Information of the other Party to third parties who: (i) have a need to know such Confidential Information for purposes of carrying out this Agreement, but only to the extent that such Confidential Information is needed to perform their obligations under this Agreement, and (ii) have entered into a written confidentiality agreement at least as protective of the other Party’s Confidential Information as the terms of this Agreement. Each Party will use the other Party’s Confidential Information only as expressly permitted in this Agreement or as necessary to perform its obligations or enforce its rights in this Agreement. Each Party shall notify the other Party immediately if it becomes aware of any unauthorized use, disclosure, or publication of such other Party’s Confidential Information. Each Party shall have the right to disclose the other Party’s Confidential Information as required by law or legal process or under the applicable rules of a securities market or exchange; provided, however, that the disclosing Party shall use reasonable efforts to give the other Party a reasonable opportunity to intervene to prevent such disclosure or to obtain a protective order, and that any Confidential Information so disclosed otherwise remains subject to the confidentiality obligations set forth in this Section. This provision expressly survives the expiration or termination of this Agreement in perpetuity with respect to the Subscription Services, Feedback, and Subscription Reports or other information downloaded, copied, or removed from the Subscription Service.
3.3 Trademark Usage. Neither Party shall use any trademark or service mark of the other Party, in any published form, literature, or other documentation, without obtaining the express written consent of the other Party. Notwithstanding any of the above, RapidRatings may, in connection with Customer’s use of the Subscription Services, identify Customer as a customer of RapidRatings by use of Customer’s name in a manner no more prominent than RapidRatings’ other customers.
SECTION 4. WARRANTIES.
4.1 Mutual. Each Party hereby represents and warrants to the other Party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such Party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.
4.2 Customer Warranties. Customer hereby represents and warrants to RapidRatings that (i) Customer has and will maintain all rights in the Customer Content, including any portion thereof provided by Customer licensed from or belonging to a third party, necessary to provide the Customer Data to RapidRatings under this Agreement and the use thereof by and on behalf of Rapid Ratings as contemplated by this Agreement will not violate the rights of any third party; and (ii) Customer will comply with all laws, rules, and regulations in its exercise of its rights and performance of its obligations under this Agreement and will not take any action that would cause RapidRatings to violate any applicable laws, rules, or regulations.
4.2 RapidRatings Warranties. RapidRatings hereby represents and warrants to Customer that (i) RapidRatings will comply with all laws, rules, and regulations in its exercise of its rights and performance of its obligations under this Agreement and (ii) the Subscription Services will perform substantially in accordance with the applicable Documentation. Customer’s sole remedy for a breach of Section 4.2(ii) is termination pursuant to Section 7.2 (Termination).
4.3 Disclaimer of Warranties. RAPIDRATINGS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS SECTION 4 OF THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. RAPIDRATINGS PROVIDES THE SUBSCRIPTION SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, RAPIDRATINGS DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY THIRD-PARTY CONTENT: (I) WILL BE UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS; (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS; (III) WILL BE COMPLETE; (IV) IS DESIGNED TO OR WILL MEET CUSTOMER’S REQUIREMENTS OR SPECIFICATIONS OR ENABLE CUSTOMER TO ACHIEVE ANY PARTICULAR RESULTS; OR (V) WILL OPERATE IN THE HARDWARE OR SOFTWARE CONFIGURATION USED BY CUSTOMER. RAPIDRATINGS DOES NOT REPRESENT OR WARRANT THAT ANY COMPONENT OF THE SUBSCRIPTION SERVICES DEPENDENT ON THE ACTIONS OR INACTIONS OF A THIRD PARTY, SUCH AS A THIRD PARTY PLATFORM PROVIDER, SHALL OCCUR, NOR THAT ANY INFORMATION OBTAINED FROM ANY THIRD PARTY WILL BE ACCURATE, COMPLETE, TRUTHFUL, OR FREE FROM DEFECTS OF ANY KIND. CUSTOMER ACKNOWLEDGES THAT DATA USED TO PROVIDE THE SUBSCRIPTION SERVICES CONTAINS THIRD-PARTY DATA, AND RAPIDRATINGS WILL NOT BE LIABLE IN CONNECTION WITH ANY THIRD-PARTY DATA.
SECTION 5. LIMITATIONS OF LIABILITY; DISCLAIMERS.
5.1 Limitation of Liability. IN NO EVENT WILL RAPIDRATINGS’ AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING CLAIMS RELATING TO THE SUBSCRIPTION SERVICES, INCLUDING THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT) EXCEED THE SUM OF THE SUBSCRIPTION FEES PAID TO THE RESELLER FOR THE SUBSCRIPTION SERVICES DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT (OR THE FIRST EVENT IN A SERIES OF RELATED EVENTS) GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY AND WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
5.2 Exclusion of Damages. IN NO EVENT WILL RAPIDRATINGS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICE (INCLUDING THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT), REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 5 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. RAPIDRATINGS EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGES CAUSED BY ANY RESELLERS OR OTHER THIRD PARTIES.
5.3 Financial Services Disclaimers. THE SUBSCRIPTION SERVICES, INCLUDING THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT, MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT RAPIDRATINGS’ CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENTS. THE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE RAPIDRATINGS’ CONTROL. CUSTOMER ACKNOWLEDGES THAT ANY INFORMATION PROVIDED BY THE SUBSCRIPTION SERVICE, INCLUDING THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT, IS NOT INTENDED TO BE A SUBSTITUTE FOR A FINANCIAL ADVISOR’S OR INVESTOR’S INDEPENDENT ASSESSMENT OF WHETHER TO BUY, SELL, OR HOLD ANY FINANCIAL PRODUCTS. RAPIDRATINGS IS NOT AN INVESTMENT ADVISOR. THE INFORMATION PROVIDED IN THE SUBSCRIPTION SERVICE IS DERIVED OBJECTIVELY BY RAPIDRATINGS FROM PUBLIC AND NON-PUBLIC INFORMATION PROVIDED TO RAPIDRATINGS BY CUSTOMER AND THIRD PARTIES. IF CUSTOMER CHOOSES TO USE THIS INFORMATION IN FORMING THE BASIS FOR AN INVESTMENT DECISION, CUSTOMER SHOULD USE THE INFORMATION IN CONJUNCTION WITH OTHER INFORMATION. RAPIDRATINGS PROVIDES NO GUARANTEE WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF SUBSCRIPTION SERVICES, INCLUDING THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT, NOR THE INFORMATION OR CONCLUSIONS DERIVED FROM THEM. RAPIDRATINGS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY TRADING OR INVESTMENT DECISIONS OR ANY OTHER BUSINESS DECISION BASED ON THE SUBSCRIPTION SERVICES, INCLUDING THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT. THE CUSTOMER REPRESENTS AND WARRANTS THAT IT UNDERSTANDS THAT THE SUBSCRIPTION REPORTS AND ALL SERVICE CONTENT ARE STATEMENTS OF OPINION OBJECTIVELY CREATED THROUGH THE APPLICATION OF RAPIDRATINGS’S PROPRIETARY SOFTWARE LOGIC TO INFORMATION ABOUT AN ENTITY FROM PUBLICLY AVAILABLE INFORMATION, OR WITH RESPECT TO PRIVATE COMPANY RATINGS, INFORMATION PROVIDED BY THE CUSTOMER OR A THIRD PARTY. RAPIDRATINGS IS NOT RESPONSIBLE FOR EITHER THE ACCURACY OR COMPLETENESS OF ANY PUBLIC FILINGS OR ANY PRIVATE COMPANY FINANCIAL STATEMENTS PROVIDED BY THE CUSTOMER OR A THIRD PARTY. THE CUSTOMER AGREES THAT RAPIDRATINGS HAS CONDUCTED A REASONABLE INVESTIGATION OF THE FACTUAL ELEMENTS RELIED UPON IN DETERMINING SUBSCRIPTION REPORTS AND THAT RAPIDRATINGS’ PROCEDURES TO VERIFY A COMPANY’S FINANCIAL INFORMATION ARE REASONABLE.
SECTION 6. INDEMNIFICATION.
6.1 By Rapid Ratings. RapidRatings shall, at its sole expense, indemnify, defend, and hold harmless Customer and its employees, agents, directors, officers, owners, and representatives (the “Customer Indemnified Parties”) from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) incurred in connection with any judicial or non-judicial claim, action, demand, suit, or proceeding brought by a third party (collectively, “Claims”) against one or more of the Customer Indemnified Parties insofar as such Claim arises from, relates to, or is connected with an allegation that Customer’s use, in accordance with this Agreement, of the Subscription Service infringes such third party’s intellectual property rights. If RapidRatings becomes aware of a Claim, or the intent of a third party to file a Claim, of infringement or misappropriation related to the Subscription Services, RapidRatings may, at RapidRatings’ option, (i) modify the Subscription Services so that they are no longer claimed to infringe or misappropriate, without breaching the warranties under this Agreement, (ii) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (iii) terminate this Agreement and/or Customer’s subscription for the Subscription Service upon notice and refund any prepaid fees covering the remainder of the Subscription Term. This Section 6.1 states RapidRatings’ sole liability to Customer, and the Customer’s sole and exclusive remedy against Rapid Ratings, for any type of claim relating to intellectual property infringement or misappropriation, including those described in this Section 6.1. RapidRatings expressly disclaims all indemnification obligations related to any responsibility for loss or damages caused by any Resellers or other third parties.
6.2 By Customer. Customer shall, at its sole expense, indemnify, defend, and hold harmless RapidRatings and its employees, agents, directors, officers, owners, and representatives (the “RapidRatings Indemnified Parties”) from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) incurred in connection with any Claims brought against one or more of the RapidRatings Indemnified Parties insofar as such Claim arises from, relates to, or is connected with: (i) Customer’s actual or alleged breach of this Agreement; (ii) Customer Content or RapidRatings’ use, as permitted in this Agreement, of any Customer Content including any Customer Content provided by Customer licensed from or belonging to a third party; (iii) Customer’s use of the Subscription Services in violation of applicable law; or (iv) Customer’s or any third party’s actions or inactions taken or decisions made based upon the Subscription Services, including any Subscription Reports or Service Content.
6.3 Indemnity Procedures. The Party requesting indemnification will notify the other Party promptly in writing of the Claim. In no event will the indemnifying Party compromise, settle, or dispose of any Claim that affects the indemnified Party without the prior written consent of the indemnified Party, which consent will not be unreasonably withheld or delayed. The indemnified Party shall have the right to participate in the defense of any Claim. If an indemnifying Party does not comply with its obligations in this Section 6 promptly following written notice of a Claim, the indemnified Party shall have the right to retain separate counsel to represent its interests at the sole cost and expense of the indemnifying Party.
SECTION 7. TERMINATION.
7.1 Term. The term of this Agreement will commence as of the Effective Date and will continue for the length of the applicable Order (or until all Order(s) are expired or terminated).
7.2 Termination. Each Party shall have the right to terminate this Agreement at any time, effective upon written notice to the other Party, if such other Party materially fails to perform any of its material obligations under this Agreement, and such failure continues uncured for a period of 30 days after written notice of such failure.
7.3 Suspension. RapidRatings may temporarily suspend Customer access to or use of the Subscription Services, with or without notice, upon any actual, threatened, or suspected violation by Customer or any Users of the Agreement or upon any other conduct deemed by RapidRatings, in its sole and reasonable judgment to be inappropriate or detrimental to RapidRatings, the Subscription Services, any other Customer, or any third party, including any actual or suspected threat to the security or functionality of the Subscription Services. RapidRatings will use reasonable efforts to provide advance notice to Customer of any such suspension based on the nature of the circumstances giving rise to the suspension. RapidRatings will use reasonable efforts to re-establish the affected Subscription Services promptly after RapidRatings determines, in its sole and reasonable discretion, that the situation giving rise to the suspension has been cured. RapidRatings may terminate the Subscription Services if any of the foregoing causes of suspension is not cured within thirty (30) days after any initial suspension. Any suspension or termination by RapidRatings under this Section shall not excuse Customer from Customer’s obligation to make payment(s) to the Reseller per this Agreement. Any failure to make payment(s) to Reseller in relation to RapidRatings Subscription Services is a material breach of this Agreement.
7.4 Effect of Termination. Upon any termination of this Agreement: (i) all access to and use of the Subscription Services will automatically and immediately terminate; (ii) all amounts due or payable to the Reseller under any Order(s) will become due and payable; (iii) Customer will immediately cease all use of and access to the Subscription Services; (iv) RapidRatings may, in its sole discretion, delete your account and any of your Customer Content held by RapidRatings and (v) Customer shall, at Rapid Ratings’ option, return or destroy all Confidential Information belonging to Rapid Ratings in its possession or control and shall certify to RapidRatings that it has done so no later than 10 business days after any such termination of this Agreement. Sections 2.1, 2.2, 2.3, 3.1, 3.2, 4-8, and those Sections which by their nature are intended to, will survive.
SECTION 8. GENERAL.
8.1 Injunctive Relief. Customer agrees that if it breaches any of its obligations under this Agreement, or infringes or violates any of RapidRatings’ intellectual property rights, it will cause RapidRatings irreparable injury that cannot be readily remedied in monetary damages in an action at law. Therefore, Customer agrees that RapidRatings shall be entitled to obtain, on an expedited basis from any court of competent jurisdiction, and without the requirement of the posting of a bond or other security, immediate injunctive relief to enjoin any such breach or prospective breach or any infringement or prospective infringement. The foregoing will be in addition to, and not in lieu of, such other remedies as RapidRatings may otherwise have available to it under applicable law.
8.2 Order Enforcement. As a condition to RapidRatings’ performance of this Agreement, Customer agrees to comply with the terms of each Order entered into by Customer and Reseller. In the event of any breach by Customer of the foregoing commitment or of any Order, in addition to RapidRatings’ right to enforce this Agreement, RapidRatings may directly enforce the terms of any Order against Customer as an intended third party beneficiary of such Order if Reseller fails to do so. Nothing herein prevents RapidRatings from any entitlements to any damages, costs, and/or attorneys’ fees it recovers from the Customer when exercising its rights in this paragraph. There are no party beneficiaries of this Agreement or any Order, whether express or implied, other than as stated in this Section.
8.3 Order of Precedence, Amendments. In the event of any conflict between the terms of any Order and this Agreement, this Agreement shall prevail and control for all purposes with respect to the RapidRatings Subscriptions Services unless the Order expressly modifies this Agreement. No provisions, understandings, or documents between the Reseller and Customer shall have any effect or create any rights or obligations on the part of RapidRatings without the express written agreement of RapidRatings. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the Parties.
8.4 Assignment. Customer may not assign, delegate, or otherwise transfer its rights or obligations under this Agreement without the prior written consent of RapidRatings except that Customer may assign this Agreement in its entirety in connection with a change in control. This Agreement will be binding upon the Parties and their permitted successors and assigns and if Customer sells or divests an entity or assets, this Agreement shall remain with Customer and shall not apply to the third-party entity or assets.
8.5 Waiver, Relationship, Third Parties. A Party’s failure to enforce a right or remedy in this Agreement will not constitute a waiver of such right or remedy. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the Parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party, except that Customer authorizes Rapid Ratings to collect information from third parties on Customer’s behalf.
8.6 Governing Law and Jurisdiction. The Agreement is governed by the laws of the State of New York, without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York County, New York and the Parties hereby irrevocably consent and submit to the exclusive personal jurisdiction of those courts.
8.7 Severability. This Agreement constitutes the entire understanding and agreement and supersedes any and all prior understandings and agreements between the Parties. If any provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein.
8.8 Notices. Any notice given by either Party to the other shall be in writing and will be sent by personal delivery, internationally recognized overnight courier with delivery confirmation, electronic notification (such as email), or U.S. Mail, certified or registered, postage prepaid, return receipt requested, to the respective address set forth in this Agreement, or such other address(es) as specified in writing by the Party in accordance with this Section. All notices will be deemed effective upon delivery (or attempted delivery), except that electronic notification shall be deemed effective upon receipt acknowledgement by the receiving Party if a copy is sent to legal@rapidratings.com.
8.9 Execution. This Agreement may be executed in counterparts, all of which together will constitute the entire fully executed instrument. Facsimile, photocopy, or electronic signatures will be given the same effect as originals or ink signatures.
SECTION 9: SUBSCRIPTION SERVICES SPECIFICS.
9.0 Subscription Services Specific Terms. RapidRatings Subscription Services will be available via web-based access and remote telecommunications as of the Order. In addition, RapidRatings may deliver Subscription Reports, Documentation, and other documents to Customer electronically via email, file transfer protocol, or other method, as RapidRatings deems appropriate. If Customer purchases the following Subscription Services (as applicable, as noted on the Order), then these additional terms apply:
(a) FHR Access. Access and use of the FHR® and associated analysis and reports for a universe of public companies covered by RapidRatings (the "Public Universe") and a universe of private companies (the "Private Universe") may be provided pursuant to an Order. Associated analysis includes company specific reports which highlight financial strengths and weaknesses, and allows comparison to other companies. Associated analysis also includes portfolio views which present and compare aggregated data for industry segments, geographical segments or custom portfolios. Analysis includes a combination of online dashboards and downloadable reports in PDF or excel format.
(b) Network Outreach Services. Network Outreach Services are Subscription Services that enable Customer to obtain Private Universe data through FHR Exchange. If Customer has selected Network Outreach, RapidRatings will communicate and solicit financial information from third parties and input the resulting Private Universe data into RapidRatings systems. Customer acknowledges that all data access is provided or revoked at the discretion of such third party. RapidRatings may establish an annual recurring or other relationship with such third party that extends beyond the term of the Order. If the Order length is longer than one year or Customer renews the Order, then Customer is encouraged to refresh the financial data of such third party. Network Outreach services will be conducted in a timeframe to be agreed between the Parties. All Network Outreach and/or survey requests must be submitted to RapidRatings in writing no less than sixty (60) days before the expiration of the term of this Order Form, unless the Customer has committed to a renewal. Customer agrees that time is of the essence with respect to such requests and, therefore, any unused services will expire at the end of the then-current term of this Order Form and will not be carried over into any extension or renewal term.
(c) Professional Services. If applicable, RapidRatings will use commercially reasonable efforts to provide professional services in the form of technical and professional personnel providing onboarding, implementation, and/or training activities (hereinafter “Professional Services”) as further described in an Order. All RapidRatings Professional Services are delivered on a fixed fee basis per the applicable Order. If any on-site travel is agreed between the Parties, then additional travel and living expenses will be billed as incurred. Actual expenses will be invoiced in arrears after the performance of the Professional Services. All expenses will be billed pursuant to the RapidRatings Travel and Expense Policy, or Customer’s equivalent policy when provided in advance. Any fees in the applicable Order are based upon an estimate at the time of the Order. Changes or additions to the scope may require additional signed Order before such changes are commenced by RapidRatings. RapidRatings may provide Customer with Deliverables, such as training materials, periodic status reports, or other reports. RapidRatings Professional Services do not include any custom, configuration, or design Deliverables for Customer. No enhancements or improvements to the RapidRatings Subscription Services are committed or implied under any Order unless expressly stated. RapidRatings, including RapidRatings licensors, own all intellectual property rights in and to the Deliverables. RapidRatings hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right for the term of the Order to access and use the Deliverables as set out therein for Customer’s confidential internal business purposes with the Subscription Services. Customer’s access and use of the Deliverables only extends only to the number of Users described in the applicable Order and to a reasonable number of copies. RapidRatings represents and warrants that it shall perform the Professional Services in a professional and workmanlike manner. RapidRatings, at Customer’s request, will remove any RapidRatings personnel performing the Professional Services who, in the reasonable opinion of Customer, are not performing satisfactorily and promptly provide a substitute satisfactory to Customer at RapidRatings’ sole expense. However, RapidRatings cannot guarantee specific personnel or the same member of RapidRatings personnel will be assigned to Customer. Customer is responsible for coordinating, facilitating, or otherwise managing communications, interactions, or deliveries by Customer’s other third-party vendors and/or Reseller.
EXHIBIT A
RAPIDRATINGS SUPPORT AND SERVICE LEVELS
TECHNICAL SUPPORT HOURS
RapidRatings Client Success team is available Monday through Friday from 9:00 AM to 7:00 PM EST. RapidRatings will accommodate scheduled calls and sessions outside of these hours to help the Customer team successfully meet its goals.
INCIDENT MANAGEMENT
Incidents can be reported to RapidRatings Client Support team by calling +1 (646) 233-4563 or emailing support@rapidratings.com. For service availability incidents, we encourage Customers to both email and call, explaining the number of users affected and the urgency of the issue.
A member of the RapidRatings Client Support team will triage within an average of two (2) hours during Technical Support Hours to assess the seriousness and urgency of the issue. This includes assigning a turnaround time which is determined from both the urgency and complexity of the issue.
The majority of issues are assigned a "Same Day" turnaround time which corresponds to half a working day. For all issues that cannot be resolved in this timeline, RapidRatings Client Support will establish a clear timeline and ensure that this permits business continuity for Customer.
RapidRatings’ Client Support will provide Customer with remote assistance for help using and operating the Subscription Services in order to provide accurate reports of issues. RapidRatings will ensure that each of its personnel performing any Support Services are experienced, knowledgeable, and qualified in the use, maintenance, and support of the Subscription Services.
AVAILABILITY AND PERFORMANCE
RapidRatings system is available twenty-four (24) hours seven (7) days a week except for planned and communicated outages to Customer. Except for these outages, the RapidRatings system will operate with at least 99.5% availability, measured as an average over a quarterly period. An availability incident occurs when multiple parties are prevented from accessing the technology platform. RapidRatings will promptly (in no more than 3 business days) provide a summary report of historical availability upon request. Availability is defined as:
Availability = (Total Scheduled Availability-Downtime)/(Total Scheduled Availability)
Scheduled system maintenance that involves loss of access to the technology platform will usually be performed on Saturday or Sunday between the hours of 4:00 a.m. and 6:00 a.m. (EST). RapidRatings will provide Customer with at least ten business days’ prior written notice of any scheduled maintenance that involves loss of access to the technology platform. RapidRatings will provide Customer with as much as reasonably possible, with a goal of at least sixty minutes’ advance written notice, for unscheduled emergency maintenance of the Subscription Services.
The RapidRatings Subscription Services, as a web-based application, are subject to the internet network connection and internet service providers and as such cannot guarantee request turnaround times. In normal operational circumstances, RapidRatings expects any given webpage to load in <10 seconds.
RapidRatings will: (A) monitor the Subscription Services and supporting infrastructure controlled or maintained by RapidRatings for Errors; (B) identify root causes for any Errors; (C) correct Errors; and (D) minimize recurrences of Errors. Following the occurrence of any Error, upon Customer’s request, RapidRatings will promptly (in no more than 3 business days) provide to Customer the RapidRatings’ plan for remediating the Error. An “Error” means any bug, defect, or error impacting the availability of the Subscription Services.
If RapidRatings fails to meet the availability levels in any two quarters in a rolling twelve-month period during an Order Term, Customer may terminate the Agreement or the applicable Order upon thirty (30) days written notice to RapidRatings.
UPDATES
RapidRatings may make updates daily if there is expected to be no disruption of the Subscription Services. If suspending or impeding the Subscription Services to implement updates becomes necessary, then RapidRatings will work to minimize any disruption to availability during the agreed maintenance timeframes. All updates will be deemed part of the Subscription Services.
NETWORK OUTREACH SERVICE LEVELS (IF NETWORK OUTREACH IS PURCHASED BY CUSTOMER)
RapidRatings provides Network Outreach Subscription Services by interacting with third parties to procure third party financial statement information and provide FHR and related reporting. RapidRatings does not make any commitments with regards to the response times of third parties.
From the beginning of the process through the end, typical turnaround time for private company FHRs and related reporting is four (4) to (6) weeks.
RapidRatings will provide Network Outreach Subscription Services according to the following table:
RapidRatings will communicate the occurrence of Surge periods to Customer upon request.
If RapidRatings does not meet the Network Outreach Service Levels, RapidRatings will provide a resolution plan to return to the Service Levels within no more than two (2) weeks.
Last Updated August 3, 2023
