BY ACCEPTING THIS AGREEMENT, EITHER BY A BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “AGREEMENT”), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE APPLICATIONS AND RELATED COMPONENTS OF RUMBLEWARE INC (“RUMBLEWARE”). 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 THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
RumbleWare will provide you with use of the Services on the terms and conditions of this Agreement. Your registration for, or use of, the Services shall be deemed to be your agreement to abide by this Agreement.
For reference, capitalized terms not defined when first used shall have the definitions set forth in the Definitions section included at the end of this Agreement.
1. Services
1.1 Services. You agree to the following terms and conditions governing your and your organization’s use of the Services identified in the Order Form, developed and maintained by RumbleWare. RumbleWare will provide the Services in accordance with this Agreement. RumbleWare may at its sole discretion modify the features of the Services from time to time without prior notice.
1.2 Free Trial of Services. In the event that the RumbleWare has permitted you to utilize the Services as part of a Free Trial, you agree to the terms and conditions set forth in this Agreement except that Sections 7, 8, 9 and 10 of this Agreement shall not apply to such Free Trial. RumbleWare reserves the right to terminate the Free Trial at any time and for any or no reason. Upon the expiration of the Free Trial Period or RumbleWare’s termination of the Free Trial, all your rights to utilize the Services shall automatically cease.
2. License Grant & Restrictions
2.1 Subscription to the Services. Subject to the terms of this Agreement, RumbleWare hereby grants to you a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services as set forth on the Applicable Order Form solely for your own internal business purposes. If the Services are to be provided and billed based, wholly or partially, upon your use of the Services (“Use Based Services”), the appropriate billing for such usage and the method by which any Fees and Charges for such Use Based Services will be calculated will be set forth in the applicable Order Form(s). If the Services are to be provided and billed based, wholly or partially, on the number of Users (“User Based Services”), the license granted herein will be for the number of Users for which you have paid the applicable subscription fee. Unless approved by RumbleWare, the rights of any User to utilize any User Based Services cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the User Based Services. All rights not expressly granted to you are reserved by RumbleWare and its licensors.
2.2 Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content; (ii) modify or make derivative works based upon the Services or the Content; (iii) create Internet “links” to the Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or decompile the Services. You may use the Services only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, defamatory, obscene, threatening, abusive, hateful, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy, publicity or personal rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify RumbleWare immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to RumbleWare immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; (iii) not impersonate another RumbleWare user or provide false identity information to gain access to or use the Services; and (iv) not attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures.
4. Customer Data
RumbleWare does not own any data, information or material that you submit to the Services in the course of using the Services ("Customer Data"). You, not RumbleWare, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and RumbleWare shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
5. Intellectual Property Ownership
RumbleWare alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the RumbleWare Technology, the Content and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the RumbleWare Technology or the Intellectual Property Rights owned by RumbleWare. The RumbleWare name, the RumbleWare logo, and the product names associated with the Services are trademarks of RumbleWare or third parties, and no right or license is granted to use them.
6. Third Party Interactions
6.1 Third Party Sites. During use of the Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Services. Any such activity is conducted at your sole risk, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. RumbleWare and its licensors shall have no liability, obligation or responsibility for any interactions, correspondence, purchases or other activity taking place between you and any third-party or for any claims losses or damages resulting therefrom.
6.2 Modifications to Third Party Sites and Services. You acknowledge and agree that utilizing the Services will permit you to view and modify data, metadata and settings of certain third party websites and services (“Third Party Service Modifications”). By your use of the Services and your acceptance of the terms of this Agreement, you expressly consent to and authorize any Third Party Service Modifications brought about by your use of the Services. You acknowledge and agree that the purpose of certain of our Services is to make Third Party Service Modifications and you acknowledge that you are assuming the risk that the Services may implement unintended Third Party Service Modifications. RumbleWare shall have no liability to you or any third parties for any Third Party Service Modifications made by your use of the Services.
7. Payment of Fees and Charges
7.1 Fees and Charges. For the Initial Term, you shall pay all Fees and
Charges to your account in accordance with the billing terms in effect pursuant to an applicable Order Form. Payments may be made as set forth in the Order Form or as otherwise mutually agreed upon in writing from time to time. For any User Based Services, you are responsible for paying all Fees and Charges for the Services for the entire License Term, whether or not all User licenses agreed to in the Order Form for User Based Services are actively used.
7.2 Adding Users to User Based Services. You may add additional Users to any User Based Services by submitting an additional written Order Form, subject to the approval of RumbleWare. Adding Users to any User Based Services will be subject to the following: (i) added User licenses will be coterminous with your then existing term for the User Based Services (either Initial Term or Renewal Term); (ii) the Fees and Charges for the added Users will be as agreed upon in the additional Order Form; and (iii) User licenses added in the middle of a billing month will be charged in full for that billing month. You may reduce the number of Users, effective only upon the expiration of the then current term (Initial Term or Renewal Term, as applicable), by notifying RumbleWare in writing at least ten (10) business days prior to the date of the expiration of such term.
7.3 Adding Additional Use Based Services. You may add additional Use Based Services by submitting an additional written Order Form, subject to the approval of RumbleWare. Adding any Use Based Services will be subject to the following: (i) added Use Based Services will be coterminous with your then existing term for the current Use Based Services you are utilizing (either Initial Term or Renewal Term); and (ii) the Fees and Charges for the added Use Based Services will be as agreed upon in the additional Order Form.
7.4 Modification of Fees and Charges. RumbleWare reserves the right to modify its Fees and Charges for each Renewal Term by providing an invoice to you at least thirty (30) days prior to the expiration of the then existing term (whether it is the Initial Term or a Renewal Term, as applicable) setting forth the Fees and Charges and payment terms applicable to such Renewal Term. In the event that RumbleWare does not provide such invoice, it will be assumed that the Fees and Charges for the Renewal Term will remain the same as the then expiring term and the payment terms for such Fees and Charges will remain unchanged for such Renewal Term.
8. Payment/Taxes on Fees
Unless RumbleWare in its discretion determines otherwise, all Fees and Charges shall be billed and paid in US dollars. If you believe that RumbleWare has billed you an incorrect amount, you must contact us in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. RumbleWare’s Fees and Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on RumbleWare’s income.
9. Suspension/Termination of Service or Agreement
In addition to any other legal remedies, RumbleWare reserves the right to suspend or terminate your use of the Services and/or this Agreement if you breach any terms of this Agreement, including without limitation if your account becomes delinquent. Delinquent invoices are subject to a late fee of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
10. Term of Agreement
This Agreement commences on the Effective Date and shall have the Initial Term set forth in the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms (each a “Renewal Term”) equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) so long as neither party notifies the other in writing of its intention not to renew this Agreement at least ten (10) business days prior to the expiration of the then current term. The Fees and Charges for such Renewal Term shall be as set forth in Section 7 (Charges and Payment of Fees) above.
11. Termination
In the event this Agreement is terminated for any reason, RumbleWare will make available to you a file of the Customer Data within thirty (30) days of termination if you so request at the time of termination. You agree and acknowledge that RumbleWare has no obligation to retain the Customer Data, and may delete such Customer Data thirty (30) days after termination. You hereby expressly agree that RumbleWare will have no liability to you of any kind for the deletion of your Customer Data pursuant to the provisions of this Section 11.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
RumbleWare represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online RumbleWare help documentation under normal use and circumstances.
You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Services, that your billing information is correct and that no User Content is illegal or unlawful, infringes on the Intellectual Property Rights of others or will cause harm to a third party.
13. Mutual Indemnification
13.1 Indemnification by You. You shall indemnify, defend and hold RumbleWare, its licensors and their parent organizations, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, agents and successors and assigns harmless from and against any and all claims, actions, suits, proceedings, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) and costs (collectively referred to as “Claims”) made or brought against RumbleWare by a third party alleging that Customer Data, or your use of the Services in violation of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law, and shall indemnify RumbleWare for any damages finally awarded against, and for reasonable attorney’s fees incurred by, RumbleWare in connection with any such Claim; provided, that RumbleWare (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim without RumbleWare’s consent unless the settlement unconditionally release RumbleWare of all liability); and (c) provide to you all reasonable assistance, at your expense.
13.2 Indemnification by RumbleWare. RumbleWare shall defend you from and against any and all Claim made or brought against you by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such Claim; provided, that you (a) promptly give RumbleWare written notice of the Claim; (b) give RumbleWare sole control of the defense and settlement of the Claim (provided that RumbleWare may not settle any Claim without your consent unless the settlement unconditionally releases you of all liability); and (c) provide to RumbleWare all reasonable assistance, at RumbleWare’s expense.
13.3 Sole and Exclusive Remedy. This Section 13 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
14. Disclaimer of Warranties
RUMBLEWARE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. RUMBLEWARE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" AND “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY RUMBLEWARE AND ITS LICENSORS.
15. Limitation of Liability
EXCEPT FOR RUMBLEWARE’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13.2 ABOVE, IN NO EVENT SHALL RUMBLEWARE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO RUMBLEWARE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL RUMBLEWARE AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF RUMBLEWARE OR IT'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
16. Local Laws and Export Control
RumbleWare and its licensors make no representation that the Services are appropriate or available for use in other locations. If you use the Services from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. You and any User of the Services or this site acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
17. Modification to Terms
RumbleWare reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Services. You are responsible for regularly reviewing this Agreement and agree to do so. Nothing in the Agreement will be construed as obligating you to continue using the Services after any such modification is made; however, your sole remedy in the event that you do not wish to accept such modification will be termination of the Agreement. Should you continue to use the Services after such modification is effective, to the extent permitted by applicable law, such use will be deemed to be your acceptance thereto and you expressly agree that no additional written agreement or express acknowledgement will be required to accept such modification.
18. Notice
RumbleWare may give notice by means of a general notice on the Services, electronic mail to your e-mail address on record in RumbleWare’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in RumbleWare’s account information. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by e-mail). You may give notice to RumbleWare (such notice shall be deemed given when received by RumbleWare) at any time by any of the following: e-mail at legal@rumbleware.com, letter sent by confirmed facsimile to RumbleWare at the following fax number: (408) 834-7848; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to RumbleWare at the following address: RumbleWare Inc., P.O. Box 60702, Sunnyvale, CA 94088 addressed to the attention of Legal Department.
19. Assignment
This Agreement may not be assigned by you without the prior written approval of RumbleWare but may be assigned without your consent by RumbleWare to (i) a parent or subsidiary, (ii) an acquirer of assets or a majority of the voting securities of RumbleWare, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
20. General
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in San Jose, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and RumbleWare as a result of this Agreement or use of the Services. The failure of RumbleWare to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by RumbleWare in writing. This Agreement and the applicable Order Form(s) comprises the entire agreement between you and RumbleWare and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
21. Definitions
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Services.
"Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Services.
“Fees and Charges” shall mean any and all fees and charges set forth on the applicable Order Form(s) entered into by you and RumbleWare, including without limitation, per User charges and fees and any Usage Fees.
“Free Trial” shall mean your utilization of the Services for evaluation purposes by an unlimited number of users for no consideration during the Free Trial Period.
“Free Trial Period” shall mean a period of two (2) consecutive weeks.
“Initial Term” shall be the term set forth in the Order Form.
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
"License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Services pursuant to the Order Form(s) including any Renewal Term(s).
"Order Form(s)" means the form evidencing the initial subscription for the Services and any subsequent order forms submitted online or in written form which have been agreed to by both parties, specifying, among other things, the number of licenses and other services contracted for, the applicable Fees and Charges, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
"Services" means the proprietary software application by RumbleWare and/or its licensors, application service, and/or internet business service solution identified during the ordering process, developed, operated, and maintained by RumbleWare and/or its licensors, accessible via www.rumbleware.com or another designated web site or IP address, or ancillary services rendered to you by RumbleWare, to which you are being granted access under this Agreement, as may be modified from time to time at RumbleWare’s sole discretion.
"Technology" means all of the proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) of RumbleWare or its licensors made available to you by RumbleWare in providing the Services.
“Usage Fee” shall be such fees agreed to by you in an applicable Order Form(s) relating to your usage of the Services.
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by you (or by RumbleWare at your request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@rumbleware.com.
