Last updated: 23 April 2020
BY ACCEPTING THESE TERMS AND CONDITIONS THROUGH CLICKING ON “SIGN ME UP” DISPLAYED AS PART OF THE ACCOUNT SIGN UP PROCESS OR AN ORDERING DOCUMENT THAT INCORPORATES THESE TERMS AND CONDITIONS (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
This RequirementONE Terms and Conditions (this “Agreement”) is between RequirementONE Group Limited (“RequirementONE”) and the individual or entity that has executed this Agreement (“You”). This Agreement sets forth the terms and conditions that govern orders placed by You for a Subscription under this Agreement.
1. AGREEMENT DEFINITIONS
|App or Apps||is a RequirementONE configured product which may be bought directly through an Order or downloaded from the R1 Marketplace.|
|Auto Renew or Auto Renewal||is the process by which the Subscription Period of a Subscription under an Order is automatically extended for an additional Subscription Period unless such Subscriptions are otherwise terminated in accordance with the terms of the Order or this Agreement. The Subscription Specifications incorporated into Your Order define which Subscriptions are eligible for Auto Renewal as well as any terms applicable to any such auto renewal.|
|Data Center||refers to the geographic location in which the Subscription Environment is physically located. The Data Center applicable to the Private Cloud Subscription is set forth in the Order.|
|Documentation||means the on-line information, user manuals, product descriptions, manuals and materials, as well as any help windows and readme files for the RequirementONE Products that are accessible from the Subscription. The Documentation describes technical and functional aspects of the RequirementONE Products.|
|Effective Date||means the date this agreement is effective as shown by the date on the applicable order form.|
|Private Cloud Subscription||means the RequirementONE Private Cloud Subscription listed in Your Order and defined in the Subscription Specifications.|
|Professional Services||means, collectively, the consulting and other professional services which You have ordered. Professional Services include any deliverables described in Your Order and delivered by RequirementONE to You under the Order.|
|Renewal||is the process by which the Subscription Period of a certain Subscription is extended for an additional Subscription Period through a new transaction.|
|RequirementONE Products||refers to the software products owned or licensed by RequirementONE to which RequirementONE grants You access as part of the Order, including Documentation, and any program updates provided as part of the Subscription.|
|Separate Terms||refers to separate license terms between You and a third-party licensor that are specified in the Subscription Specifications, readme or notice files and that apply to Separately Licensed Third-Party Technology.|
|Separately Licensed Third-Party Technology||refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement.|
|Subscription||means, collectively, any RequirementONE software as a service (SaaS), Private Cloud Subscription, Professional Services, or App service offering listed on the RequirementONE current product list.|
|Subscription Environment||means the combination of data center, hardware and software components owned, licensed or managed by RequirementONE to which RequirementONE grants You and Your Users access as part of the Subscription which You have ordered.|
|Subscription Fees||mean the annual fees paid by You for the right to use the Subscription.|
|Subscription Period||refers to the period of time for which You ordered Your Subscription as specified in Your Order.|
|Subscription Specifications||refers to the combination of platform, users, apps, automation, reporting, professional services and customer success that comprise the Subscription within Your Order, which is hosted in the Subscription Environment.|
|Third-Party Content||means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third-party sources outside of RequirementONE and made available to You through, within, or in conjunction with Your use of, the Subscription. Examples of Third-Party Content include data feeds, RSS feeds, and data libraries. Third-Party Content does not include Separately Licensed Third-Party Technology.|
|Users||means those employees, partners, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Subscription in accordance with this Agreement and Your Order. For Subscriptions that are specifically designed to allow Your customers, suppliers or other third parties to access the Subscription to interact with You, such third parties will be considered “Users” subject to the terms of this Agreement and Your Order.|
|You and Your||refers to the individual or entity that has executed this Agreement.|
|Your Content||means all text, files, images, graphics, illustrations, information, data (including Personal Data as that term is defined in the Data Processing Agreement), audio, video, photographs and other content and material (other than Your Applications), in any format, provided by You or Your Users that reside in, or run on or through, the Subscription Environment.|
Other capitalized terms have the definitions provided for them in the Agreement.
2. TERM OF AGREEMENT
- This Agreement is valid for any Order which references this Agreement or for an Annual Subscription or a Monthly Subscription.
- Subscriptions provided under this Agreement will start on the Effective Date and shall be provided for the Subscription Period defined in Your Order, unless earlier suspended or terminated in accordance with this Agreement or the Order.
- The minimum Subscription Period for any Agreement that includes Private Cloud is one (1) year.
- This Agreement may also be referenced for any purchase that increases the quantity of the original Subscription ordered (e.g., additional Users), for any Subscription options offered by RequirementONE for the original Subscription ordered, and for any Renewal or Auto Renewal of the Subscription Period of the original Order.
- Except as otherwise specified in the Order, Subscriptions will automatically renew at RequirementONE’s then current pricing for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless superseded by a new Agreement or notice is given in accordance with the END OF SUBSCRIPTION section below.
3. RIGHTS GRANTED
- Subject to these Terms and Conditions and any applicable Order, for the duration of the Subscription Period and subject to Your payment obligations, and except as otherwise set forth in this Agreement or Your Order, You have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Subscription that You ordered, including anything developed by RequirementONE and delivered to You as part of the Subscription, solely for Your internal business operations and subject to the terms of this Agreement and Your Order, including the Subscription Specifications.
- You do not acquire under this Agreement any right or license to use the Subscription, including the RequirementONE Products and Subscription Environment, in excess of the scope and/or duration of the Subscription stated in Your Order. Upon the end of the Subscription ordered, Your right to access and use the Subscription will terminate.
- The Subscription may not be used by more than the number of users indicated on all applicable Orders.
- The Subscription may not be used as a service bureau, ASP, or other service provided to third parties, unless specifically mentioned in the Order.
- To enable RequirementONE to provide You and Your Users with the Subscription, You grant RequirementONE the right to use, process and transmit, in accordance with this Agreement and Your Order, Your Content for the duration of the Subscription Period plus any additional post-termination period during which RequirementONE provides You with access to retrieve an export file of Your Content.
- Subscriptions are provided online only, and thus RequirementONE will not ship copies of Products to You as part of the Subscription.
- As part of certain App offerings, RequirementONE may provide You with access to Third-Party Content within the Subscription Environment. The type and scope of any Third-Party Content is defined in the Subscription Specifications applicable to Your Order.
- The third-party owner, author or provider of such Third-Party Content retains all ownership and intellectual property rights in and to that content, and Your rights to use such Third-Party Content are subject to, and governed by, the terms applicable to such content as specified by such third-party owner, author or provider.
4. INTELLECTUAL PROPERTY
- RequirementONE alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the RequirementONE Products, RequirementONE Subscription, RequirementONE Documentation, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Subscriptions.
- The RequirementONE name, the RequirementONE logo, and the product names associated with the Subscription are trademarks of RequirementONE or third parties, and no right or license is granted to use them.
- All copyrights, patent rights, trade secrets, trademarks, service marks, and all other rights pertaining thereto are the intellectual property of RequirementONE or its licensors which are protected by national and international law.
5. PARTNERS, ADVERTISERS AND SPONSORS
- During use of the Subscription, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions from Third-parties including partners, advertisers or sponsors.
- Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party.
- RequirementONE shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party.
6. OWNERSHIP AND RESTRICTIONS
- You retain all ownership and intellectual property rights in and to Your Content. RequirementONE or its licensors retain all ownership and intellectual property rights to the Subscription, including RequirementONE Products, and derivative works thereof, and to anything developed or delivered by or on behalf of RequirementONE under this Agreement.
- You may not, and may not cause or permit others to:
- access the Subscription if you are a competitor of RequirementONE, except with RequirementONE’s prior written consent.
- remove or modify any program markings or any notice of RequirementONE’s or its licensors’ proprietary rights;
- make the Products or materials resulting from the Subscription (excluding Your Content) available in any manner to any third-party for use in the third-party’s business operations (unless such access is expressly permitted for the specific Subscription You have acquired);
- modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Subscription (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), or access or use the Subscription in order to build or support, and/or assist a third-party in building or supporting, products or services competitive to RequirementONE;
- perform or disclose any benchmark or performance tests of the Subscription, including the RequirementONE Products;
perform or disclose any of the following security testing of the Subscription Environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
- license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Subscription, RequirementONE Products, Subscription Environments or RequirementONE materials to any third party, other than as expressly permitted under the terms of the applicable Order.
7. SUBSCRIPTION SPECIFICATIONS
- The Subscription is subject to and governed by the Subscription Specifications applicable to Your Order.
- Subscription Specifications may define provisioning and management processes applicable to the Subscription (such as disaster recovery planning), types and quantities of system resources (such as automation allotments), functional and technical aspects of the RequirementONE Subscription, as well as any Subscription deliverables.
- You acknowledge that use of the Subscription in a manner not consistent with the Subscription Specifications may adversely affect Subscription performance and/or may result in additional fees.
- If the Subscription permits You to exceed the ordered quantity (e.g., soft limits on counts for Users, Robotic Process Automation, etc.), then You are responsible for promptly purchasing additional quantity to account for Your excess usage. For any month that You do not promptly purchase such additional quantity, RequirementONE may require You to pay, in addition to the fees for the additional quantity, an excess usage fee for those Subscriptions equivalent to 10% of the fees for the additional quantity in the month in which such excess usage occurred.
- RequirementONE may make changes or updates to the Subscription (such as infrastructure, security, technical configurations, application features, etc.) during the Subscription Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third-Party Content. The Subscription Specifications are subject to change at RequirementONE’s discretion; however, RequirementONE changes to the Subscription Specifications will not result in a material reduction in the level of performance or availability of the applicable Subscription provided to You for the duration of the Subscription Period.
- If Your Order is for Private Cloud, it will specify the Data Center in which Your Subscription Environment will reside. As described in the Subscription Specifications and to the extent applicable to the Subscription that You have ordered, RequirementONE will provide service environments in the Data Center stated in Your Order.
- RequirementONE may perform certain aspects of Subscription management, such as Subscription administration and support, as well as other Subscription (including Professional Services), from locations and/or through use of subcontractors, worldwide.
8. USE OF THE SUBSCRIPTION
- You are responsible for identifying and authenticating all Users, for approving access by such Users to the Subscription, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information.
- On SaaS instances You accept responsibility for the confidentiality, creation, maintenance and timely and proper termination of user records within RequirementONE.
- On Private Cloud instances, by associating Your Users’ usernames, passwords and accounts with RequirementONE, You accept responsibility for the confidentiality, maintenance and timely and proper termination of user records in Your local identity infrastructure or on Your local computers.
- RequirementONE is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Subscription but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers.
- You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Subscription, and agree to notify RequirementONE immediately of any unauthorized use. You agree to make every reasonable effort to prevent unauthorized third-parties from accessing the Subscription.
- You agree not to use or permit use of the Subscription, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Content, Your Applications and Third-Party Content, for any purpose that may
- menace or harass any person or cause damage or injury to any person or property,
- involve the publication of any material that is false, defamatory, harassing or obscene,
- violate privacy rights or promote bigotry, racism, hatred or harm,
- constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters;
- constitute an infringement of intellectual property or other proprietary rights, or
otherwise violate applicable laws, ordinances or regulations.
- Certain Subscriptions offer integration capabilities via an application programming interface, or API. Unless otherwise specified in the Order, the number of API calls you can make per account is limited as follows:
- Up to 100 API calls per day, per User (aggregated over all Users under the account)
- Up to an aggregate maximum of 5,000 calls per day, per account.
- The maximum disk storage space provided for Monthly Subscriptions is 1 GB. If the amount of disk storage required exceeds these limits, You will be charged the then-current storage fees. RequirementONE will use reasonable efforts to notify you when the storage used reaches approximately 90% of the maximum; however, any failure by RequirementONE to so notify you shall not affect your responsibility for such additional storage charges. RequirementONE reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
- Metered Robotic Process Automation (RPA) will be invoiced monthly at the then current rates. Payments not received within seven (7) days after the date of invoice shall be considered delinquent and RequirementONE will terminate RPA until payment is received. RequirementONE reserves the right to impose a re-connection fee in the event you are suspended and thereafter request access to RPA.
- Subscription Robotic Process Automation (RPA) will be estimated for the Subscription Period, and added to the Order at the then current rates. Usage will be monitored, and should usage exceed what has been specified in the Order, the Service will revert to Metered until renewal. At renewal, You may elect to continue with Metered RPA, or revert to Subscription RPA at a higher rate. Should usage be less than expected, this can be reduced at renewal. No refunds are given for unused RPA capacity, as the capacity will have been provisioned based on the Order.
- In addition to any other rights afforded to RequirementONE under this Agreement, RequirementONE reserves the right, but has no obligation, to take remedial action if any material violates the restrictions in the RequirementONE Acceptable Use Policy, including the removal or disablement of access to such material. RequirementONE shall have no liability to You in the event that RequirementONE takes such action.
- You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Content. You agree to defend and indemnify RequirementONE against any claim arising out of a violation of Your obligations under this section.
- You are required to accept all maintenance necessary for the proper function and security of the Subscription. Except for emergency or security related maintenance activities, RequirementONE will coordinate with You the maintenance schedule, where possible, based on RequirementONE’s next available standard maintenance window.
9. FEES AND TAXES
- All fees payable to RequirementONE in the currency specified in the Order form, and without deduction or setoff, are due within 30 days from the invoice date. Payments not received within thirty (30) days after the date of invoice shall be considered delinquent and shall be subject to interest in the amount of the lesser of 1.5% per month or the maximum amount allowed by law.
- RequirementONE reserves the right to impose a re-connection fee in the event you are suspended and thereafter request access to the Subscription. You agree and acknowledge that RequirementONE has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is thirty (30) days or more delinquent.
- Once placed, Your Order is non-cancelable and the sums paid non-refundable, except as provided in this Agreement or Your Order.
- You will pay any sales, value-added or other similar taxes imposed by applicable law that RequirementONE must pay based on the Subscription You ordered, except for taxes based on RequirementONE’s income. You will indemnify RequirementONE and hold RequirementONE harmless from and against any such taxes and will promptly reimburse RequirementONE for the amount of any taxes that RequirementONE is required to pay as a result of Your failure to pay such amount.
- You agree to provide RequirementONE with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Subscription Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, RequirementONE reserves the right to terminate your access to the Subscription in addition to any other legal remedies.
- You will pay RequirementONE for Professional Services in accordance with the relevant Statement of Work as well as any approved change orders. If no payment arrangement is specified, RequirementONE will submit monthly invoices, based on RequirementONE’s then current Professional Services rates. Payments for Deliverables shall be non-refundable.
- You will reimburse RequirementONE for reasonable expenses related to providing any Professional Services.
- Fees for Subscription listed in an Order are exclusive of taxes and expenses.
- You agree and acknowledge that You have not relied on the future availability of any Subscription feature in entering into the payment obligations in Your Order; however, the preceding does not relieve RequirementONE of its obligation during the Subscription Period to deliver the Subscription that You have ordered per the terms of this Agreement.
- If you believe your bill is incorrect, you must contact us in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. END OF SERVICES
- Unless specifically altered by the Order, Your Subscription will Auto Renew for additional Subscription Periods unless:
- You provide RequirementONE with written notice no later than thirty (30) days prior to the end of the applicable Subscription Period of Your intention not to renew the Subscription, or
- RequirementONE provides You with written notice no later than ninety (90) days prior to the end of the applicable Subscription Period of its intention not to renew the Subscription.
- On termination or expiration of the Agreement, the Subscription shall automatically terminate with immediate effect.
- At Your written request prior to the end of the Subscription, and for a period of up to thirty (30) days after the end of the applicable Subscription Period, RequirementONE will make available Your Content for the purpose of retrieval by You. At the end of such thirty (30) day period, and except as may be required by law, RequirementONE will delete or otherwise render inaccessible any of Your Content that remains in the Subscription Environment.
- RequirementONE may temporarily suspend Your password, account, and access to or use of the Subscription if You or Your Users violate any provision within the RIGHTS GRANTED, OWNERSHIP AND RESTRICTIONS, FEES AND TAXES, USE OF THE SERVICES or EXPORT sections of this Agreement, or if in RequirementONE’s reasonable judgement, the Subscription or any component thereof are about to suffer a significant threat to security or functionality.
- RequirementONE will provide advance notice to You of any such suspension at RequirementONE’s reasonable discretion based on the nature of the circumstances giving rise to the suspension.
- RequirementONE will use reasonable efforts to re-establish the affected Subscription promptly after RequirementONE determines, at its reasonable discretion, that the situation giving rise to the suspension has been cured.
- RequirementONE may terminate the Subscription under an Order if any of the foregoing causes of suspension is not cured within thirty (30) days after RequirementONE’s initial notice thereof. Any suspension or termination by RequirementONE under this paragraph shall not excuse You from Your obligation to make payment(s) under this Agreement.
- If either of us breaches a material term of this Agreement and fails to correct the breach within thirty (30) days of written specification of the breach, or within five (5) days if breach is non-payment, then the breaching party is in default and the non-breaching party may terminate the Order under which the breach occurred.
- If RequirementONE terminates the Order as specified in the preceding sentence, You must pay within thirty (30) days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Subscription under such Order plus related taxes and expenses.
- The non-breaching party may agree in its sole discretion to extend the thirty (30) day period for so long as the breaching party continues reasonable efforts to cure the breach.
- You agree that if You are in default under this Agreement, You may not use the Subscription.
- By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement.
- Confidential information includes all code, inventions, algorithms, business concepts, workflow, ideas, and all information clearly identified as confidential at the time of disclosure. The Order and Subscription, but not the existence, of this Agreement, in whole or part, is Confidential Information.
- A party’s Confidential Information shall not include information that:
- is or becomes a part of the public domain through no act or omission of the other party;
- was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
- is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
- is independently developed by the other party.
- We each agree not to disclose each other’s Confidential Information to any third party other than as set forth in the following sentences for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party.
- RequirementONE will hold Your Confidential Information that resides within the Subscription Environment in confidence for as long as such information resides in the Subscription Environment.
- We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement.
- RequirementONE will protect the confidentiality of Your Content residing in the Subscription Environment in accordance with the RequirementONE security practices defined as part of the Subscription Specifications applicable to Your Order.
- RequirementONE will protect the confidentiality of your Personal Data in accordance with the terms of the DATA PROTECTION Section below.
- Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.
12. DATA PROTECTION
- You will be asked whether or not You wish to receive marketing and other non-critical Subscription-related communications from RequirementONE from time to time. You may opt out of receiving such communications at that time or at any subsequent time. Note that because the Subscription is a hosted, online application, RequirementONE occasionally may need to notify all users of the Subscription (whether or not they have opted out as described above) of important announcements regarding the operation of the Subscription.
- If You become a paying customer of the Subscription, unless otherwise specified in Your Order, You agree that RequirementONE can disclose the fact that you are a paying customer and a high level overview of how you are using the Subscription.
- RequirementONE’s Data Processing Agreement for the Subscription (the “Data Processing Agreement”), describes the parties’ respective roles for the processing and control of Personal Data that You provide to RequirementONE as part of the Subscription.
- RequirementONE will act as a data processor, and will act on Your instruction concerning the treatment of Your Personal Data residing in the Subscription Environment, as specified in this Agreement, the Data Processing Agreement and the applicable Order. You agree to provide any notices and obtain any consents related to Your use of the Subscription and RequirementONE’s provision of the Subscription, including those related to the collection, use, processing, transfer and disclosure of Personal Data.
- The Subscription Specifications applicable to Your Order define the administrative, physical, technical and other safeguards applied to Your Content residing in the Subscription Environment, and describe other aspects of system management applicable to the Subscription. You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms or other programming routines contained in Your Content that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
- You may not provide RequirementONE access to health, payment card or similarly sensitive personal information that imposes specific data security obligations for the processing of such data unless specified in Your Order.
13. WARRANTIES AND DISCLAIMERS
- RequirementONE warrants that the Subscription will substantially conform in all material respects in accordance with the Documentation. RequirementONE may modify the Documentation at its sole discretion, provided the functionality of the Subscription will not be materially decreased by the modification.
- RequirementONE will use commercially reasonable efforts to perform the Professional Services in material conformance with the Order and corresponding Proposal or Statement of Work. The addition of requirements not outlined in the Order, Proposal or Statement of Work or changes to these requirements will be evaluated and dependant on scope, may be treated as new projects, with separate pricing, quotes, and charges.
- If the Subscription provided to You does not performed as warranted, You must promptly provide written notice to RequirementONE that describes the deficiency in the Subscription (including, as applicable, the RequirementONE Helpdesk service request number notifying RequirementONE of the deficiency in the Subscription).
- The Subscription does not contain any computer code that is intended to
- disrupt, disable, harm, or otherwise impede in any manner, the operation of Your software, firmware, hardware, computer systems or network (sometimes referred to as “viruses” or “worms”),
- permit unauthorized access to Your network and computer systems (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms which could cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with Purchaser’s operations.
- Except for actions for non-payment or breach of RequirementONE’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
- You acknowledge that RequirementONE does not control the transfer of data over communications facilities, including the internet, and that the services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
- RequirementONE is not responsible for any delays, delivery failures, or other damage resulting from these inherent problems. RequirementONE is not responsible for any issues related to the performance, operation or security of the services that arise from your content
- RequirementONE does not make any representation or warranty regarding the performance, operation, security, reliability, accuracy, completeness, correctness or usefulness of third-party content or services, and disclaims all liabilities arising from or related to third-party content or services.
- REQUIREMENTONE DOES NOT WARRANT THAT
- THE SUBSCRIPTION WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT REQUIREMENTONE WILL CORRECT ALL ERRORS,
- THE SUBSCRIPTION WILL OPERATE IN COMBINATION WITH YOUR CONTENT, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY REQUIREMENTONE, AND
- THE SUBSCRIPTION WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED, INCLUDING FOR DOCUMENTATION, SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
14. REMEDIES FOR BREACH
- If any of the warranties specified in the sentences above are breached:
- You will promptly notify RequirementONE of the breach and any associated details reasonably requested by RequirementONE in its attempt to remedy the problem.
- You will work with RequirementONE in re-creating the conditions that existed at the time the Subscription failed, if reasonably requested by RequirementONE.
- RequirementONE will diligently and in good faith attempt to correct the reported breach by repairing or modifying the Subscription within a commercially reasonable period of time.
- If any defective portion of the Subscription causes the entire Subscription to fail in its essential purpose, and if RequirementONE determines that
- RequirementONE is unable to cure that defect by repairing or modifying the Subscription, then You may elect to terminate your right to use the
- Subscription, and You will be entitled to a refund of the Subscription Fees actually paid to RequirementONE for the unexpired portion of the Subscription Period.
- THE REMEDIES IN THIS SECTION ARE EXCLUSIVE AND ARE PURCHASER'S SOLE REMEDIES WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO ANY BREACH OF WARRANTY OR OTHER FAILURE OF THE SERVICE TO OPERATE AS INTENDED, WHETHER BASED IN CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE.
15. LIMITATION OF LIABILITY
- NOTHING IN THIS AGREEMENT SHALL LIMIT REQUIREMENTONE’S LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF REQUIREMENTONE, OR REQUIREMENTONE’S LIABILITY IN THE TORT OF DECEIT.
- NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE.
- EXCEPT FOR
- INDEMNIFICATION OBLIGATIONS;
- DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;
- DAMAGES RESULTING FROM MATERIAL BREACH OF CONFIDENTIALITY OR
- YOUR BREACH OF THE TERMS AND CONDITIONS
- REQUIREMENTONE’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO REQUIREMENTONE FOR THE SUBSCRIPTION UNDER THE ORDER GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY LESS ANY REFUNDS OR CREDITS RECEIVED BY YOU FROM REQUIREMENTONE UNDER SUCH ORDER.
- THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
- Subject to the terms of this Section (INDEMNIFICATION), if a third party makes a claim against either You or RequirementONE (“Recipient” which may refer to You or RequirementONE depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either You or RequirementONE (“Provider” which may refer to You or RequirementONE depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
- gives the Provider sole control of the defense and any settlement negotiations; and
- gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.
- If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects RequirementONE’s ability to meet its obligations under the relevant Order, then RequirementONE may, at its option and upon thirty (30) days prior written notice, terminate the Order.
- The Provider will not indemnify the Recipient if the Recipient
- alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or Subscription Specifications,
- uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, or
- continues to use the applicable Material after the end of the license to use that Material.
- The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. RequirementONE will not indemnify You for any portion of an infringement claim that is based upon the combination of any Material with any products or service not provided by RequirementONE. RequirementONE will not indemnify You to the extent that an infringement claim is based on Third-Party Content or any Material from a third-party portal or other external source that is accessible to You within or from the Subscription (e.g., a social media post from a third party blog or forum, a third-party Web page accessed via a hyperlink, etc.). RequirementONE will not indemnify You for infringement caused by Your actions against any third-party if the Subscription as delivered to You and used in accordance with the terms of this Agreement would not otherwise infringe any third-party intellectual property rights. RequirementONE will not indemnify You for any intellectual property infringement claim(s) known to You at the time Subscription rights are obtained.
- The term “Material” defined above does not include Separately Licensed Third-Party Technology. Solely with respect to Separately Licensed Third Party Technology that is part of or is required to use the Cloud Subscription and that is used:
- in unmodified form;
- as part of or as required to use the Cloud Subscription; and
- in accordance with the usage grant for the relevant Cloud Subscription and all other terms and conditions of this Agreement, RequirementONE will indemnify You for infringement claims for Separately Licensed Third-Party Technology to the same extent as RequirementONE is required to provide infringement indemnification for Materials under the terms of the Agreement.
- SECTION PROVIDES THE PARTIES’ EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT CLAIMS OR DAMAGES.
17. THIRD PARTY CONTENT, PRODUCTS AND SERVICES
- The Subscription may enable You to access content, products and services from third parties (“Third-party content”). RequirementONE does not control and is not responsible for such Third-party content, and You bear all risks associated with access to and use of such Third-party content.
- Any Third-Party Content made accessible by RequirementONE in or through the Subscription Environment is provided on an “as-is” and “as available” basis without any warranty of any kind.
- Third-Party Content may be indecent, offensive, inaccurate, infringing or otherwise objectionable or unlawful, and You acknowledge that RequirementONE is not responsible for and under no obligation to control, monitor or correct Third-Party Content; however, RequirementONE reserves the right to take remedial action if any such content violates applicable restrictions, including the removal of, or disablement of access to, such content.
- You acknowledge that:
- the nature, type, quality and availability of Third-Party Content may change at any time during the Subscription Period, and
- features of the Subscription that interoperate with third parties such as Regulators and Industry bodies, etc. (each, a “Third-Party Subscription”), depend on the continuing availability of such third parties’ data for use with the Subscription.
- RequirementONE may update, change or modify the Subscription under this Agreement as a result of a change in, or unavailability of, such Third-Party Content, Third-Party Services or APIs. If any third-party ceases to make its Third-Party Content or APIs available on reasonable terms for the Subscription, as determined by RequirementONE in its sole discretion, RequirementONE may cease providing access to the affected Third-Party Content or Third-Party Subscription without any liability to You.
- Any changes to Third-Party Content, Third-Party Subscription or APIs, including their availability or unavailability, during the Subscription Period does not affect Your obligations under this Agreement or the applicable Order, and You will not be entitled to any refund, credit or other compensation due to any such changes.
Any Third-Party Content that You store in Your Subscription Environment will count towards any storage or other allotments applicable to the Private Cloud Subscription that You ordered.
- You shall obtain at Your sole expense any rights and consents from third-parties necessary for Your Content and Third-Party Content, as well as other vendor’s products provided by You that You use with the Subscription, including such rights and consents as necessary for RequirementONE to perform the Subscription under this Agreement.
18. SUBSCRIPTION TOOLS
- RequirementONE may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Subscription and to help resolve Your RequirementONE service requests. The Tools will not collect or store any of Your Content residing in the Subscription Environment, except as necessary to provide the Subscription or troubleshoot service requests or other problems in the Subscription. Information collected by the Tools (excluding Your Content) may also be used to assist in managing RequirementONE’s product and service portfolio, to help RequirementONE address deficiencies in its product and service offerings, and for license and Subscription management.
19. SERVICE ANALYSIS
- RequirementONE may
- compile statistical and other information related to the performance, operation and use of the Subscription, and
- use data from the Subscription Environment in aggregated form for security and operations management, to create statistical analysis, and for research and development purposes (these clauses are collectively referred to as “Subscription Analysis”). RequirementONE may make Subscription Analysis publicly available; however, Subscription Analysis will not incorporate Your Content or Confidential Information in a form that could serve to identify You or any individual, and Subscription Analysis do not constitute Personal Data. RequirementONE retains all intellectual property rights in Subscription Analysis.
- Export laws and regulations apply to the Subscription. You agree that such export laws govern Your use of the Subscription and any Subscription deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).
- You agree that no data, information, software Products and/or materials resulting from Subscription (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
- You acknowledge that the Private Cloud Subscription is designed with capabilities for You and Your Users to access the Subscription Environment without regard to geographic location and to transfer or otherwise move Your Content between the Subscription Environment and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts, as well as export control and geographic transfer of Your Content.
21. FORCE MAJEURE
- Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; fire; flood; pandemic; strike; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Subscription and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Subscription.
- Any notice required under this Agreement shall be provided to the other party in writing. If You have a dispute with RequirementONE or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to:
RequirementONE Group Limited, Suite 5, 5th Floor, City Reach, 5 Greenwich View Place, London, England, E14 9NN
- To request a termination of Subscription in accordance with this Agreement, You must submit a service request via the RequirementONE Helpdesk
- RequirementONE may give notices applicable to RequirementONE’s customer base by means of a general notice on the RequirementONE portal for the Subscription, and notices specific to You by electronic mail to Your e-mail address on record in RequirementONE’s account information or by written communication sent by mail to Your address on record in RequirementONE’s account information. It is your responsibility to ensure these records are maintained with the correct information.
- Any notice required under this Agreement shall be provided to the other party in writing. If You have a dispute with RequirementONE or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to:
- You may not assign this Agreement or give or transfer the Subscription (including the RequirementONE Product) or an interest in them to another individual or entity.
24. GENERAL PROVISIONS
- You agree to provide RequirementONE with all information, access and full good faith cooperation reasonably necessary to enable RequirementONE to provide the Subscription and You will perform the actions identified as Your responsibilities.
- RequirementONE may audit Your use of the Subscription (e.g., through use of software tools) to assess whether Your use of the Subscription is in accordance with Your Order and the terms of this Agreement. You agree to cooperate with RequirementONE’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within thirty (30) days of written notification any fees applicable to Your use of the Subscription in excess of Your rights. If You do not pay, RequirementONE can end Your Subscription and/or Your Order. You agree that RequirementONE shall not be responsible for any of Your costs incurred in cooperating with the audit.
- The purchase of any Subscription is separate from any other Order. Your obligation to pay under any Order is not contingent on performance of any other service offerings or delivery of Products or products.
- The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of the Agreement.
25. SURVIVAL OF CERTAIN PROVISIONS
- If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
- The provisions of this Agreement concerning Confidential Information, use of RequirementONE’ trademarks, copyright, and other intellectual property rights, limitation of liability and indemnification, shall survive the termination of this Agreement, and termination shall not relieve either party of the obligation to pay any amount due the other. All rights and remedies of RequirementONE shall survive termination.
26. GOVERNING LAW AND JURISDICTION
- This Agreement is governed by English law and You and RequirementONE agree to submit to the exclusive jurisdiction of, and venue in, the courts of England in any dispute arising out of or relating to this Agreement.
27. ENTIRE AGREEMENT
- You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable Order, is the complete agreement for the Subscription ordered by You and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Subscription. Nothing in this Agreement excludes or limits RequirementONE’s liability for deceit or fraudulent misrepresentation.
- It is expressly agreed that the terms of this Agreement and any RequirementONE Order shall supersede the terms in any purchase Order, procurement internet portal, or other similar non-RequirementONE document and no terms included in any such purchase Order, portal, or other non-RequirementONE document shall apply to the Subscription ordered. In the event of any inconsistencies between the terms of an Order and the Agreement, the Order shall take precedence; however, unless expressly stated otherwise in an Order, the terms of the Data Processing Agreement shall take precedence over any inconsistent terms in an Order. Except as otherwise permitted in the sections for Subscription Specifications, Data Protection and Third-Party Content with respect to the Subscription, this Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted by authorized representatives of You and of RequirementONE.
- No third-party beneficiary relationships are created by this Agreement.
RequirementONE Group Ltd.
Suite 5, 5th Floor
5 Greenwich View Place
E14 9NN, London