Updated March 29, 2021
SECTION 1. PREAMBLE.
These Terms and Conditions (“Agreement”) governs Customer’s use of and access to the RapidRatings Subscription Services. By executing a Reseller Order Form referencing this Agreement or clicking a field to indicate acceptance of this Agreement, Customer agrees to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to this Agreement. Any references to “Customer” or “you” refer to such entity. If you do not agree to these terms and conditions, or do not have the authority to accept this Agreement, you must not accept this Agreement or use the Subscription Services. This Agreement is between Rapid Ratings International, Inc., a Delaware corporation, having an address at 86 Chambers Street, Suite 701, New York, New York 10007, USA (“RapidRatings”) and Customer. RapidRatings and Customer, each a “Party” and collectively the “Parties”. The Agreement is made and entered into as of the date you accept the Agreement.
SECTION 2. DEFINITIONS.
2.1 “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 publicly available 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 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.
2.2 “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.
2.3 “Reseller Order Form” means the ordering document specifying the Subscriptions Services purchased by Customer that is signed by Customer.
2.4 “Subscription Fees” means the fees stated on the applicable Reseller Order Form.
2.5 “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.
2.6 “Subscription Services” means the products and services purchased by Customer under an Order Form for a number of Users and made available through the RapidRatings electronic functionality accessible via the internet and telecommunications applications, including applicable Subscription Reports, technical support, solicitation or survey services, and Documentation.
2.7 “Subscription Term” means the period of time during which the Customer may access the applicable Subscription Services as set forth in the applicable Reseller Order Form, commencing upon the Order Effective Date, and will continue for the period defined in the Reseller Order Form unless renewed or terminated sooner.
2.8 “Third Party Platform Provider” means the third-party service provider and infrastructure used with the Subscription Services.
2.9 “User” means an individual who is authorized by Customer to use the Subscription Service and has a login credential. A User may be an employee, contractor, or agent of Customer.
SECTION 3. SUBSCRIPTION SERVICES.
3.1 Access to Subscription Service. Subject to 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 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 Reseller Order Form.
3.2 Restrictions. Without limitation, Customer shall not, and shall not permit any third party to: (a) use the Subscription Services in any manner not expressly permitted by this Agreement or in violation of applicable law; (b) attempt to or access, reproduce, commercialize, reverse engineer, use any other data, software, or services not expressly part of this Agreement; (c) circumvent a contractual usage limit, use to excess, or otherwise interferes with RapidRatings’ ability to provide the Subscription Services.
3.3 Customer License. Customer grants RapidRatings a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, sublicensable license to store, host, reproduce, access, use, transmit, create derivative works of and display all Customer data provided to RapidRatings for use with the Subscription Services and/or Subscription Reports.
3.4 Users; Service Increases. Customer shall have the right to purchase other RapidRatings services and/or increase the number of Users by providing RapidRatings with written notice and paying the additional Subscription Fees set forth on the applicable Reseller Order Form. 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.
3.5 Compliance. Customer will be responsible for each User’s, and for its other employees’ and contractors’, 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.
3.6 Monitoring and Audit Rights. RapidRatings reserves the right to monitor and annually audit Customer’s use of the Subscription Services to ensure Customer’s compliance with the restrictions in 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.
3.7 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.
3.8 Subscription Fees. In consideration for the Subscription Services set forth in the Order Form, Customer shall pay Reseller the Subscription Fees set forth in the Reseller Order Form.
SECTION 4. PROPRIETARY RIGHTS.
4.1 Ownership of Intellectual Property Rights. RapidRatings owns all intellectual property rights to the Subscription Services, Subscription Reports, the Documentation, and to any RapidRatings Confidential Information and Customer has no right or claim to any such intellectual property rights. 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. 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.
4.2 Confidential Information. Each Party shall use commercially reasonable efforts to prevent the unauthorized use, disclosure, or publication of the other Party’s Confidential Information (“CI”) and treat the other Party’s CI with the same degree of care that it uses to protect the confidentiality of its own CI, but nothing less than a reasonable standard of care. Each Party will use the other Party’s CI only as expressly permitted in this Agreement or as necessary to perform its obligations or enforce its rights in this Agreement and shall notify the other Party immediately if it becomes aware of any unauthorized use or disclosure of such other Party’s Confidential Information. The Parties will only disclose the CI to persons or entities who need to know the information to perform under this Agreement, and who have agreed in writing to protect the Parties CI to the same extent expressed in this Agreement. If a either Party receives a court order or is otherwise required by law to disclose any CI, that Party will notify the other Party immediately upon receipt of the court order or other document requiring disclosure so that the Party has time to object and move for a protective order.
4.3 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 and Network Outreach, identify Customer as a customer of RapidRatings by use of Customer’s name in a manner no more prominent than RapidRatings’ other customers.
SECTION 5. WARRANTIES.
5.1 Customer Warranties. Customer hereby represents and warrants to RapidRatings that Customer has not made any prior commitment that is inconsistent with the rights or obligations granted to RapidRatings in this Agreement and use of the Subscription Services will not violate the rights of any third party. Customer will comply with any and all laws, rules, and regulations in its exercise of its rights and performance of its obligations under this Agreement.
5.2 RapidRatings Warranties. RapidRatings warrants that the Subscription Services will perform substantially in accordance with the applicable Documentation. Customer’s sole remedy for a breach of Section 5.2 is termination pursuant to Section 8.2 (Termination).
5.3 Disclaimer of Warranties. RapidRatings makes no warranties other than those made expressly in this agreement, and hereby disclaims any and all implied warranties, including warranties of fitness for a particular purpose, merchantability, and non-infringement. RapidRatings provides the subscription service 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 in performing any solicitation services under the subscription services 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 6. LIMITATIONS OF LIABILITY; DISCLAIMERS.
6.1 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) 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 customers payment obligations.
6.2 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 the Subscription Service (including the Subscription Reports), 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 6 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 third-party platform providers.
6.3 Disclaimers. The Subscription Services, including the Subscription Reports, 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, 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, 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. The Customer represents and warrants that it understands that the Subscription Reports 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 7. INDEMNIFICATION.
7.1 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 (collectively, “Claims”) brought 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 a 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 Customer’s subscription for the Subscription Service upon thirty (30) days’ written notice and refund any prepaid fees covering the remainder of the Subscription Term. This Section 7.1 states RapidRatings’ sole liability to Customer, and the Customer’s sole and exclusive remedy against Rapid Ratings, for any type of claim described in this Section 7.1. RapidRatings expressly disclaims all indemnification obligations related to any responsibility for loss or damages caused by any third-party platform providers.
7.2 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) RapidRatings’ use, as permitted in this Agreement, of Customer data including any data provided by Customer licensed from or belonging to a third party; (iii) Customer’s use of the Subscription Services in breach of this Agreement or in violation of applicable law; or (iv) a Customer’s or third party’s actions or inactions taken or decisions made based upon the Subscription Services.
7.3 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 7 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 8. TERMINATION.
8.2 Termination for Material Breach. 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.
8.3 Suspension. RapidRatings may temporarily suspend Customer access to or use of the Subscription Services if Customer or Users violate any provision within Sections 2 (Subscription Services) or Section 4 (Proprietary Rights) of the Agreement, or if in RapidRatings’ reasonable judgment, the Subscription Services are about to suffer a significant threat to security or functionality. RapidRatings will provide reasonable 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 reasonable discretion, that the situation giving rise to the suspension has been cured. RapidRatings may terminate the Subscription Services under a Reseller Order Form if any of the foregoing causes of suspension is not cured within thirty (30) days after RapidRatings’ initial notice thereof. 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.
8.4 Effect of Termination. Upon the termination of this Agreement: (i) all access to and use of the Subscription Services will automatically and immediately terminate; and (ii) Customer shall, at Rapid Ratings’ option, return or destroy all Confidential Information belonging to Rapid Ratings in its possession and shall certify to Rapid Ratings that it has done so no later than 10 business days after the termination of this Agreement. The following Sections: 1, 3.2, 3.3, 4.1, 4.2, 6, 7, 8, and 9, and those Sections which by their nature are intended to, will survive. For clarity, if any Reseller Order Form survives the expiration or termination of this Agreement, the provisions of this Agreement will remain in effect and fully incorporated into the Reseller Order Form until the Subscription Term expires.
SECTION 9. GENERAL.
9.1 Future Features. Customer agrees that its purchases and obligations to pay the Subscription Fees 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.
9.2 Injunctive Relief. Customer agrees that if it breaches any of its obligations with respect to RapidRatings’ Confidential Information or infringes 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.
9.3 Force Majeure. If by reason of any causes beyond the control of RapidRatings, RapidRatings is unable to perform in whole or in part its obligations as set forth in this Agreement, then RapidRatings shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make RapidRatings liable to Customer. RapidRatings shall not be liable for any loss, injury, delay, or damages suffered or incurred by Customer due to the above causes.
9.4 Assignment and Affiliates. Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other Party except that each Party may assign its rights and delegate its obligations under this Agreement freely 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. This Agreement is between the expressly named Parties and does not extend to any affiliates or subsidiaries of the Parties without the express, written agreement of the Parties.
9.5 Controlling Agreement. In the event of any conflict of the terms between the Reseller Agreement and this Agreement (or any portion thereof), or if the Reseller Agreement is silent regarding any term found in this Agreement, then the terms of this Agreement shall prevail and control. No provisions, understandings, documents, or agreements between the Reseller and the Customer shall have any effect or create any rights or obligations on the part of RapidRatings without the express written agreement of RapidRatings. If there is any conflict of terms between this Agreement and a Reseller Order Form, the Reseller Order Form will control for the subject matter of the Reseller Order Form.
9.6 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. There are no third-party beneficiaries of this Agreement.
9.7 Governing Law and Jurisdiction. The Agreement is governed by New York law 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.
9.8 Amendment, Severability, Notice, Execution. This Agreement (including the applicable Order Form(s), which are hereby incorporated herein) 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. 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. 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. 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.