Customer Agreement

Updated July 1, 2017

This Customer Agreement (“Agreement”) governs Customer’s use of and access to the RapidRatings Subscription Services.  By executing an Order Form referencing this Agreement or clicking a box 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 1. DEFINITIONS.

1.1    “API Services” mean the set of application programming interfaces and related functionality that enables Customer to obtain information from the Subscription Services.

1.2    “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 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.

1.3    “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.

1.4    “Order Form” means the ordering document specifying the Subscriptions Services purchased by Customer that is signed by Customer.

1.5    “Subscription Fees” means the fees stated on the applicable Order Form.

1.6    “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.

1.7    “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, API Services, and Documentation.

1.8    “Subscription Term” means the period of time during which the Customer may access the applicable Subscription Services as set forth in the applicable Order Form and commencing upon the Order Effective Date.

1.9    “Third Party Platform Provider” means the third-party service provider and infrastructure used with the Subscription Services.

1.10 “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 2. SUBSCRIPTION SERVICES.

2.1    Access to Subscription Service. Subject to the terms and conditions of this Agreement and in consideration of Customer’s timely payment of the Subscription Fees, 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 Order Form.

2.2    Restrictions. Without limitation, Customer shall not, and shall not permit any third party to:  (a) use the Subscription Services in a manner not expressly permitted by this Agreement or in violation of applicable law; (b) attempt to access or access data, research, or software services that Customer is not expressly permitted to access in the Subscription Services or any database owned or maintained by RapidRatings, such as to access information of third parties without express written authorization or to benchmark or develop a competitive product or service; (c) 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; (d) sell, resell, rent, license, sublicense, rent, lease, or otherwise commercialize (such as in a service bureau offering) the Subscription Services; (e) use the Subscription Services to store or transmit malicious code (meaning code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses) or transmit malicious code to RapidRatings; (f) decompile, disassemble or reverse engineer any aspect of the Subscription Services or RapidRatings’ software generally (except to the extent that Customer cannot by law waive its right to do so); or (g) permit direct or indirect access to or use of any Subscription Service or database owned or maintained by RapidRatings in a way that circumvents a contractual usage limit, is excessive, or otherwise interferes with RapidRatings’ ability to provide the Subscription Services or other customers’ use or enjoyment of the Subscription Services.

2.3    API Services. Customer’s use of the API Services are additionally subject to the provisions of Exhibit A, which is hereby incorporated in its entirety into this Agreement.

2.4    Users. Customer shall have the right to increase the number of Users by providing RapidRatings with written notice and paying the additional Subscription Fees set forth on the applicable Order Form. At RapidRatings’ option, 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. 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.

2.5    Monitoring and Audit Rights.  RapidRatings reserves the right to use tracking software and similar technology that automatically collects information about 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.  On not less than thirty (30) days’ advance written notice to Customer, no more than once a year, and at RapidRatings’ cost and expense, RapidRatings will have the right to audit Customer’s and any of its employee’s and contractor’s use of the Subscription Services to assure compliance with the terms of this Agreement.  Customer will be responsible for assuring reasonable cooperation with RapidRatings in connection with such audits and will provide RapidRatings with or obtain for RapidRatings access to such properties, records, and personnel as RapidRatings may reasonably require for such purpose.  RapidRatings will comply with Customer’s reasonable security policies provided to RapidRatings in writing reasonably in advance of any such audit and will take commercially reasonable steps to avoid material disruption of Customer’s business.  Any audit will occur during Customer’s normal business hours. If RapidRatings reasonably determines that Customer used the Subscription Services in excess of its number of purchased Users or otherwise in excess of its rights hereunder, RapidRatings may invoice Customer for such overuse and Customer will promptly pay such invoice.  In addition, if such overuse exceeds five percent (5%) of the number of purchased Users, Customer will reimburse RapidRatings’ reasonable costs (including attorneys’ fees and auditors’ fees) incurred in conducting the audit.

2.6    Modifications.  RapidRatings reserves the right, in its sole discretion, to amend, change, modify, update, or discontinue any aspect of the Subscription Services at any time without notice to Customer. RapidRatings reserves the right to implement and update minimum system requirements from time to time, and Customer acknowledges that it is Customer’s responsibility to maintain reasonably current systems and software to access the Subscription Services. For clarity, nothing in this Section supersedes the warranty provisions of Section 5.

2.7    Affiliates. 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.

SECTION 3. FEES

3.1 Subscription Fees.  In consideration for the Subscription Services set forth in the Order Form, Customer shall pay RapidRatings the Subscription Fees set forth in the Order Form.

3.2    Payment Terms and Late Payment.  Unless stated otherwise in the Order Form, Customer shall pay all Subscription Fees annually in advance. All business under this Agreement shall be conducted in U.S. Dollars. RapidRatings reserves the right in its sole discretion to assess on all outstanding amounts not paid when due interest at the lower of one and one half percent (1½%) per month or the highest monthly rate allowed by applicable law.  The obligation to pay and the payment of any such interest will not operate to extend any payment due date, and RapidRatings waives no rights by accepting late payment.  Customer’s timely payment of all sums due RapidRatings is a condition precedent to Customer’s rights under this Agreement.  If Customer fails to make any payment due RapidRatings pursuant to this Agreement, RapidRatings reserves the right in its sole discretion to require Customer to pay any attorneys’ fees and costs of collection incurred by RapidRatings in connection with attempting to collect or collecting such overdue amounts.

3.3    Taxes.  Customer shall pay or, upon receipt of an invoice from RapidRatings, reimburse RapidRatings for any taxes that arise from Customer’s use of the Subscription Services, are required to be collected by RapidRatings, or are imposed on the transactions contemplated by this Agreement; provided, however, that Customer shall not be responsible for any income taxes or property taxes imposed on RapidRatings.

3.4    Future Features.  Customer agrees that its purchases and obligations to pay RapidRatings 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.

SECTION 4. PROPRIETARY RIGHTS.

4.1    Ownership of Intellectual Property Rights; Feedback. RapidRatings, including RapidRatings licensors, own all intellectual property rights in and to the Subscription Services.  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 shall not contest, directly or indirectly, the validity or RapidRatings’ ownership of any intellectual property rights in and to the Subscription Services. Customer shall not do anything that may adversely affect the validity or enforceability of any intellectual property right licensed to or owned by RapidRatings, including any act, or assistance to any act, that may infringe or misappropriate or lead to the infringement or misappropriation of any such intellectual property right. Customer hereby irrevocably assigns to RapidRatings all right, title, and interest in and to any suggestions, enhancement requests, recommendations, or corrections (collectively “Feedback”) related to the Subscription Services, and agrees to provide RapidRatings with any assistance required to document, perfect, and maintain the rights in the Feedback at RapidRatings’ expense. RapidRatings will not be obligated to compensate or credit Customer or any third party for such Feedback or hold any Feedback in confidence.

4.2    Enforcement.  To the extent practicable, Customer shall make a good faith attempt to notify Rapid Rating promptly in writing if it has knowledge of a suspected infringement or misappropriation of an intellectual property right of RapidRatings by a third party, and shall provide RapidRatings with a copy of all documents and information relating thereto as long as such production is not proscribed by contract or other reason. RapidRatings shall have the right, but not the obligation, to take action in its own name to secure the cessation of any infringement or misappropriation of any intellectual property right or to bring an action against an alleged infringer.  Customer shall cooperate with RapidRatings in RapidRatings’ enforcement of its intellectual property rights. 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.

4.3    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 not less than reasonable care); provided, however, that 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 with a substantially similar standard of care. 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. 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 Subscription Reports. 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.  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.  Each Party shall have the right to disclose the terms of this Agreement to its board of directors or other similar governing body, its attorneys and accountants, and potential acquisition partners or funding sources, and as required by law, rule, or regulation. The terms, but not the existence, of this Agreement, and the Subscription Service, including any Feedback, are considered Confidential Information of RapidRatings. 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.

SECTION 5. REPRESENTATIONS AND WARRANTIES. 

5.1    Customer Warranties. Customer hereby represents and warrants to RapidRatings that (i) Customer has the full right, power, and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) Customer has not made any prior commitment that is inconsistent with the rights granted to RapidRatings in this Agreement; (iii) provision of Customer data, including any data provided by Customer licensed from or belonging to a third party, to RapidRatings for the uses contemplated in this Agreement will not violate the rights of any third party; and (iv) Customer will comply with all laws, rules, and regulations in its exercise of its rights and performance of its obligations under this Agreement.

5.2  RapidRatings Warranties. RapidRatings hereby represents and warrants to Customer that (i) RapidRatings has the full right, power, and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) RapidRatings has not made any prior commitment that is inconsistent with the rights granted to Customer in this Agreement; (iii) RapidRatings will comply with all laws, rules, and regulations in its exercise of its rights and performance of its obligations under this Agreement, and (iv) the Subscription Services will perform substantially in accordance with the applicable Documentation. Customer’s sole remedy for a breach of Section 5.2(iv) is termination pursuant to Section 8.2 (Termination).

5.3    DISCLAIMER OF WARRANTIES.  RAPID RATINGS 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 AMOUNTS PAID TO RAPIDRATINGS UNDER THIS AGREEMENT 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, BUT 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    DISCLAIMER OF FORWARD-LOOKING STATEMENTS.  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.

6.4    DISCLAIMER OF INVESTMENT RELATED INFORMATION. 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 THE THEM. RAPIDRATINGS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY TRADING OR INVESTMENT DECISIONS OR ANY OTHER BUSINESS DECISION BASED ON THE SUBSCRIPTION SERVICES. Customer represents and warrants to RapidRatings that it understands the methodology by which RapidRatings produces Subscription Services as follows: Subscription Reports are statements of opinion objectively created through the application of RapidRatings’ proprietary software logic to information about an entity from publicly available information, or with respect to private company ratings, information provided by Customer or a third party.  RapidRatings’ software is a proprietary quantitative system that analyzes financial information contained in publicly available company filings made by issuers pursuant to applicable securities laws or private company financial statements provided by Customer or a third party. Periodically, RapidRatings randomly selects a small number of public company filings used in the ratings process to test the accuracy of the information provided by the third party(ies) by comparing the information received from the third party to the public filings posted on the relevant governmental websites.  RapidRatings is not responsible for either the accuracy or completeness of any public filings or any private company financial statements provided by Customer or a third party. Customer hereby acknowledges and 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. TERM AND TERMINATION.

8.1    Term.  The term of this Agreement will commence as of the Effective Date and will continue for one year (the “Initial Term”), unless terminated sooner pursuant to this Section.  Thereafter, the term of this Agreement will automatically renew for unlimited, successive one-year periods (each a “Renewal Term”), unless either Party gives written notice to the other Party at least 60 days prior to the end of the then-current Initial Term or Renewal Term of its intent not to renew.

8.2    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 from the Party giving 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 2.1 (Access to the Subscription Services), 2.2 (Restrictions), 2.3 (API Services), 2.4 (Users), 3.1 (Subscription Fees), 3.2 (Payment Terms and Late Payment), 3.3 (Taxes), 4.1 (Ownership of Intellectual Property Rights; Feedback), or 4.2 (Enforcement) in the Agreement, or if in RapidRatings’ reasonable judgment, the Subscription Services or any component thereof are about to suffer a significant threat to security or functionality. RapidRatings will provide advance notice to Customer of any such suspension in RapidRatings’ reasonable discretion 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 an 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) under this Agreement.

8.4    Effect of Termination.  Upon the termination of this Agreement:  (i) Customer shall immediately pay Rapid Ratings all amounts due to Rapid Ratings under this Agreement; (ii) all access to and use of the Subscription Services will automatically and immediately terminate; (iii) 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 days after the termination of this Agreement; and (iv) the following Sections:  1, 2.3, 2.5, 3.2, 3.2, 4.1, 4.3, 6, 7, 8, and 9, and those Sections which by their nature are intended to, will survive. For clarity, if any Order Form survives the expiration or termination of this Agreement, the provisions of this Customer Agreement will remain in effect and fully incorporated into the Order Form until the Order Term expires.

SECTION 9. GENERAL.

9.1    Marketing.  Rapid Ratings may, in connection with the RapidRatings website, marketing, advertising, press release or other publicity, identify Customer as a customer of RapidRatings by use of Customer’s name and trademark logo in a manner no more prominent than RapidRatings other customers.

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 labor dispute, strike, lockout, riot, war, act of terrorism, inability to obtain labor or materials, supplier failures, earthquake, fire or other action of the elements, power or electrical failure, accident, governmental restriction, appropriation or other cause 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    Forum, Governing Law, Jurisdiction, Severability.  This Agreement is entered into in the State of New York, and its validity, construction, interpretation, and legal effect will be governed by the laws of the State of New York, without regard to its or any other applicable conflict of laws rules.  Any action at law or in equity arising under or in connection with this Agreement will be filed only in an appropriate State or Federal Court located in New York, New York.  The Parties hereby irrevocably consent and submit to the exclusive personal jurisdiction of, and venue in, such courts for the purposes of litigating any such action. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed by independent legal counsel of its choice.  If any one or more of the 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.

9.5    Notice, Execution, Construction.  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. If there is any conflict of terms between this Agreement and an Order Form, the Order Form will control for the subject matter of the Order Form. Facsimile, photocopy, or electronic signatures will be given the same effect as originals or ink signatures. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation.  All capitalized terms not defined in this Agreement are defined as set forth in the Order Form and vice versa.  Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise.  The terms “including”, “includes”, and “include” will be deemed to be followed by “without limitation”.

9.6    Use by U.S. Government. The Subscription Services, including any Feedback or derivatives thereof, made available by RapidRatings under this Agreement may be subject to export control, procurement, and/or other laws and regulations of the United States and other jurisdictions applicable to government contractors.  Customer agrees to comply with all applicable laws and regulations.  Customer represents that it is not currently debarred, suspended, or proposed for debarment by any government entity, including U.S. federal, state, and local government entity.  Customer specifically acknowledges that it must comply with all applicable export control laws and agrees that it shall not permit Users to access or use any Subscription Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation. The Subscription Services provided by RapidRatings under this Agreement constitute a “commercial item,” as defined at FAR 2.101 and FAR Part 12.  Consistent with this classification, use, modification, reproduction, release, transfer, performance, display, disclosure, or distribution of the software by Customer and any other end user, including a government entity, are restricted by the terms of this Agreement, and the software service and any related documentation are licensed hereunder (i) only as “commercial items,” and (ii) with only those rights as are granted to other commercial end users pursuant to the terms and conditions of this Agreement.  Use of any RapidRatings software is restricted by the terms of this Agreement and, in accordance with DFARS Section 227.7202 and FAR Section 12.212, is further restricted in accordance with the terms of RapidRatings’ commercial end user license agreement/terms of use as displayed in the Subscription Services.  Except as described herein, all other use is strictly prohibited.  This section describing government use, consistent with FAR 12.212 and DFARS 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in software as a service, computer software, computer software documentation, or technical data related to RapidRatings (here, the Licensor) under this Agreement and in any contract or subcontract under which this software service is acquired or licensed.  Neither Customer nor the government is entitled to the software’s object code or source code.

9.7    Assignment.  Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party (to be granted or withheld in its reasonable discretion); except that each Party may assign its rights and delegate its obligations under this Agreement freely in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction.  This Agreement will be binding upon and will inure to the benefit of the Parties and their permitted successors and assigns.  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.

9.8    Merger and Amendment. 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 or contemporaneous representations, understandings, and agreements between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement.  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 Party or Parties to be bound thereby.

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.

EXHIBIT A

RapidRatings API Services Terms

Customer has requested access to RapidRatings application programming interface (API) and associated services and software (collectively, “API Services”). The API Services include a API that provides access to RapidRatings computed ratings and other computed quantitative metrics. The scope of data available using the API Services is as described in API Services Documentation. The API Services will facilitate Customer’s extraction of Subscription Service content and data as defined in the Customer Agreement and the API Services Documentation. The scope of the Subscription Services, including the Subscription Reports of companies to which Customer may have access via the API Services, is additionally limited by applicable Order Form(s).

By accessing or using the API Services, Customer agrees to these terms and conditions as fully incorporated into the Customer Agreement (the “API Services Terms”). If there is a conflict between these API Services Terms and the Customer Agreement, the API Services Terms will control only for the applicable API Services. All capitalized terms have the definitions as provided in the Customer Agreement, unless otherwise expressly stated herein.

Section 1. API Services, Limitations.

1.1 API Services. According to the terms and conditions of these API Services Terms and any applicable Order Form, Customer may access and use the API Services. For clarity, the API Services are provided pursuant to the Subscription Services terms and restrictions in the Customer Agreement and the API Services are provided on a non-exclusive basis.

1.2 Access Limitations. Customer may allow any employee or contractor to view the API Services. However, any use of any other Subscription Services content, such as Subscription Reports, obtained through access or use of the API Services, is limited to valid Users of Customer. Customer will require Users to comply with (and not knowingly enable them to violate) applicable law, regulation, and the API Service Terms. Customer will only access (or attempt to access) the API Services by the means described in the Documentation. If RapidRatings assigns Customer any credentials (e.g. client IDs, tokens, etc.), Customer must use them with the applicable API Services per the Order Form and Documentation. Customer will not misrepresent or mask either Customer’s or any User’s identity or any Customer’s API client identity when using the API Services.

1.3 Data Limitations. Customer agrees that data provided by RapidRatings through the API Services is provided on a company by company basis. All API Services queries shall be per permitted frequencies in the API Services Documentation and caching is not permitted, without the written consent of RapidRatings. Customer agrees that the API Services facilitate access and use of highly confidential third-party data that must be handled in accordance with the terms of these API Services Terms. Data must also be stored separately in the case of third-party application providers or data aggregators who are acting on behalf of (or contracted by) Customer to display the API Services. Customer understands that the API Services provide access to data that is deemed highly confidential by RapidRatings and third-parties. Customer further understands that release of this information may irreparably harm RapidRatings. Customer will use industry best-practices and comply with any applicable laws related to data security to prevent unauthorized access or use of the data available through the API Services.

1.4 Usage Limitations. RapidRatings may set, change, and enforce limits on Customer’s use of the API Services (e.g. limiting the number of API requests that Customer may make in a given interval or the data that is returned), in RapidRatings sole discretion. Customer agrees to not circumvent or disable any such limitations. If Customer intends to use the API Service beyond the limitations, Customer must obtain RapidRatings’ express written consent. RapidRatings may decline such request or condition acceptance on Customer’s agreement to additional terms and/or charges for that use. RapidRatings may request reasonable information regarding any third-party contractor of Customer performing integration services or other services related to the API Services. When using the API Services, Customer will not (and will not allow others acting on Customer’s behalf to): a) sublicense the API Services for use by a third party, b) create an API Application that functions substantially the same as the API Services and offer it for use by third parties, c) perform an action or inaction with the intent of introducing any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature, d) use the API Services to defame, abuse, harass, stalk, or threaten others, in violation of the law or industry self-regulatory rules or principles, e) interfere with or disrupt the API Services or the servers or networks providing the API Services, f) promote or facilitate online gambling, equities or derivatives trading of any kind, g) reverse engineer or attempt to extract the source code of the API Services, h) copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party any of the API Services content  therefrom; i) use the API Services for any activities where the use or failure of the API Services could lead to death, personal injury, or environmental damage (such as the operation of nuclear facilities, air traffic control, or life support systems), or i) remove, obscure, or alter any RapidRatings terms of service or any communications or links to notices of those terms.

Section 2. Customer Applications.

2.1 API Applications and Monitoring. Customer may use the API Services content obtained through access or use of the API Services in Customer applications/user interfaces, where such applications may be created by Customer, Rapid Ratings, or a third party, as applicable (“API Applications”). Customer agrees that RapidRatings may monitor use of the API Services and API Applications, for reasons including to ensure quality, improve RapidRatings products and services, and verify Customer’s compliance with the API Services Terms. Customer agrees to not interfere with this monitoring. RapidRatings may use any technical means to overcome any interference RapidRatings may encounter. For clarity, any provisions from the Customer Agreement regarding monitoring and audit rights expressly apply to the API Services.

2.2 Privacy Policy. Customer will comply with all applicable privacy laws and regulations reasonably relating to the API Application including those applying to personally identifying information. Customer will provide and adhere to a privacy policy for the API Application that clearly and accurately describes what information is collected, how it is used, and that it is shared with third parties (and for what purposes it is shared with third parties), including RapidRatings if applicable.

2.3 Ownership. By using RapidRatings API Services, Customer does not acquire ownership of any rights to the API Services or the content that is accessed through the API Services. RapidRatings, including RapidRatings’ licensors, own all intellectual property rights in and to the API Services and content. Customer acknowledges that RapidRatings may develop products or services that may compete with the API Applications or any other products or services. Some of the software required by or included in RapidRatings’ API Services, or provided in a good-faith effort to assist Customer (e.g. code stubs, configuration tools), may be offered under an open source license or other license. These licenses constitute separate written agreements, and Customer should consult the appropriate Documentation. RapidRatings makes no representation or warranty for any third-party tools. If Customer provides Feedback regarding the API Services, then RapidRatings may use such information without obligation to Customer, per the Customer Agreement. Customer agrees to not misrepresent the source or ownership of the API Services. When the API Services or data or document content are displayed through any end point device, whether web-based, mobile, print or audio, this content must have the attribution, “All data and analysis provided by Rapid Ratings International.” and, if the display is visual, the RapidRatings logo as provided by RapidRatings. RapidRatings will work with Customer to provide logos appropriate for Customer’s delivery endpoint format and user experience. All use by Customer of RapidRatings trademarks (including any goodwill associated therewith) will inure to the benefit of RapidRatings. Customer shall not remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material. Except as expressly stated, these API Services Terms do not grant either party any right, title, or interest in or to the other party’s trademarks.

2.4 Linking. The API Services data must be displayed per the API Services Documentation, which RapidRatings reserves the right to update, modify, or change from time to time. Any third-party company name or data point displayed in the API Application using the API Services must be linked to a RapidRatings client portal. For example, if a link is provided with the RapidRatings FHR® data point, Customer will hyperlink the FHR data to the discrete URL provided.

Section 3. Communications.

3.1 Communication of Changes. RapidRatings may send Customer notices in connection with use of the API Services. These may contain important API Services changes that RapidRatings may make at its sole discretion that require action by Customer for uninterrupted API Services or Subscription Services access. While RapidRatings will work to ensure Customer is notified in advance of any such changes, Customer is responsible for evaluating whether a change affects the API Application. Customer is solely responsible for evaluating and reacting to these notices. RapidRatings makes no representation that API Services changes will not affect or disrupt the API Application. RapidRatings may modify the API Services Terms or Documentation, or any portion thereof, from time to time, to reflect changes to the law or changes to the API Services. RapidRatings will post notice of modifications to the API Services Terms in the Documentation or in the Customer portal website. Any changes will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted, except that changes for addressing new functions for API Services or changes made for legal reasons will be effective immediately. If RapidRatings issues a new version of the API Services, Customer must update their API Services and RapidRatings will continue to support and maintain the previous version for no more than six (6) months. If Customer does not agree to the changes or updates, Customer should discontinue use of the API Services. Customer’s continued use of the API Services constitutes acceptance of the modified API Services Terms.

3.2 Confidential Communications. Customer credentials (such as passwords, keys, and client IDs) are intended to be used by Customer and to identify Customer’s organization (entity), API Application, and other potentially unique or personally identifying information. Customer will use industry best practices and efforts to keep credentials confidential and to prevent and discourage other API clients from using Customer’s credentials. RapidRatings’ communications to Customer and RapidRatings’ API Services contain RapidRatings Confidential Information, pursuant to the Customer Agreement. Customer understands that the API Services and data and document content contain Confidential Information, and loss or misuse of such Confidential Information may cause irreparable harm to RapidRatings, Customer, or third-party entities.

3.3 Reporting Requirements. Customer is responsible for providing reports to RapidRatings that disclose the usage of the API Services (“Reporting Requirements”) upon the request of RapidRatings. The Reporting Requirements may be met by submission of at least the following information: a) time/date(s) of access/use, b) frequency of access/use, and c) what content has been accessed. The Reporting Requirements may be automated for delivery of such information to RapidRatings. The technical details of this procedure and a preferred format for the submission of information will be provided in the API Services Documentation.

Section 4. Warranties, Limitation of Liability.

IN ADDITION TO THE WARRANTIES AS PER the CUSTOMER AGREEMENT, NEITHER RAPIDRATINGS NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE

API SERVICES OR ANY CONTENT ACCESSED THROUGH OR TRANSMITTED TO THE API SERVICES, THE SPECIFIC FUNCTIONS OF THE API SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR SECURITY OR ABILITY TO MEET CUSTOMER’S NEEDS. THE API SERVICES AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. Customer represents and warrants that Customer will not violate the API Services Terms. The limitations on liability in the Customer Agreement expressly apply to these API Services Terms.

Section 5. Indemnity.

The indemnity obligations in the Customer Agreement expressly apply to these API Services Terms. In addition, Customer will defend and indemnify RapidRatings, and its affiliates, directors, officers, employees, and users, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from: a) Customer misuse of the API Services or content, including data belonging to a third party that is displayed with the API Services; b) Customer’s failure to adequately protect or secure API Services or content from internal or external threats; or c) Customer’s, or a User’s, violation(s) of the API Services Terms.

 

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