SUBSCRIPTION TERMS AND CONDITIONS
LAST UPDATED: JUNE 15TH, 2023
THESE SUBSCRIPTION TERMS AND CONDITIONS (TOGETHER WITH THE ADDITIONAL TERMS OF ANY ORDER, THE “AGREEMENT”) ARE ENTERED INTO BETWEEN YOU, AS AN INDIVIDUAL, COMPANY, CORPORATION, OR OTHER ENTITY (“CUSTOMER”), AND RISKPROFILER, LLC. (“RISKPROFILER”) ON THE DATE OF ACCEPTANCE (THE “EFFECTIVE DATE”). “CUSTOMER” MAY ALSO INCLUDE A VENDOR OF A CUSTOMER REQUESTING INFORMATION VIA THE RISKPROFILER SERVICES WHO ACCEPTS THESE TERMS AND CONDITIONS. YOU ACCEPT THIS AGREEMENT BY USING THE RISKPROFILER SERVICES OR OTHERWISE ACKNOWLEDGING YOUR ACCEPTANCE (FOR EXAMPLE, BY CLICKING THE “ACCEPT” BUTTON OR SIGNING AN ORDER REFERRING TO THESE TERMS). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A CUSTOMER ENTITY AS DESCRIBED ABOVE, YOU AND SUCH ENTITY REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND THE TERMS “YOU” OR “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY. ACCEPTANCE OF THIS AGREEMENT IS A CONDITION OF YOUR ACCESS TO THE RISKPROFILER SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE RISKPROFILER SERVICES.
BACKGROUND
RiskProfiler has crafted unique strategies and technology specifically for evaluating the cybersecurity risk borne by organizations, inclusive of their ability to manage risks presented by vendors (termed the “RiskProfiler Technology”). The customer expresses an interest in acquiring, accessing, or subscribing to the services offered by RiskProfiler, as detailed in an Order (as defined further along), which could encompass the management and continuous monitoring of vendor risk (accessible via the RiskProfiler customer portal or the RiskProfiler application programming interface), along with corresponding customer support, customer success, and facilitation services (collectively known as the “RiskProfiler Services”). RiskProfiler agrees to provide such services to the customer in accordance with the stipulations outlined in this Agreement. Each entity involved in this contract is referred to as a “Party” within this document, or collectively as the “Parties”. Acknowledging the aforementioned and the mutual agreements and terms described below, and in return for other beneficial and valuable consideration, the receipt and adequacy of which is recognized, the Parties agree as detailed below:
SECTION 1 — SERVICES
RiskProfiler shall grant the Customer admittance to the RiskProfiler Services throughout the duration of the subscription. RiskProfiler may also incorporate into the RiskProfiler Services specific data, services, or integrations derived from external third-party sources (“Third-Party Services”), which may necessitate the acceptance of separate or additional terms imposed by such third parties for access.
Conforming to the terms and conditions of this Agreement, RiskProfiler bestows upon the Customer a non-exclusive and non-transferable privilege to access and utilize the RiskProfiler Services as follows: (i) access and employ the RiskProfiler Services purely for its internal operational needs; (ii) reproduce and preserve the information and data contained in the RiskProfiler Services made accessible to and accessed by the Customer (the “RiskProfiler Data”) within one or more databases under its control or possession for analysis, manipulation, report generation, or other legitimate activities, all for the purposes mentioned in the preceding clause; (iii) distribute internally, in the normal course of the Customer’s operations, reports, presentations and other materials that incorporate, utilize, or display the RiskProfiler Data of rated organizations or derivatives thereof; (iv) share with any third party, including publicly, any RiskProfiler Data that pertains solely to the Customer and the Customer’s RiskProfiler-assigned industry sector rating; and (v) share the RiskProfiler Data that pertains solely to a rated organization with such organization via functionality embedded in the RiskProfiler Service for the purpose of initiating or maintaining a business relationship, provided that such rated organization is a current or prospective vendor/service provider, regulator, insured, or affiliate (including any portfolio companies or potential acquisition or investment targets) of the Customer.
“Users” are individuals who receive authorization from the Customer to utilize the RiskProfiler Services as permitted herein and who have been assigned user identifications and passwords either by a Customer’s administrative users or RiskProfiler (upon the Customer’s request). Users can be Customer’s employees, contractors or consultants provided that the RiskProfiler Services are employed for the sole advantage of the Customer and that such Users adhere to confidentiality obligations no less restrictive than those in this Agreement. The RiskProfiler Services allow administrative Users to customize access levels on a per-User basis to ensure that each User possesses the desired level of access to the RiskProfiler Data. The Customer bears responsibility and liability for maintaining the secrecy and security of logins and passwords for the RiskProfiler Services, for ensuring the appropriate configuration of access levels in the RiskProfiler portal, and for enforcing compliance with this Agreement, including Sections 1.2, 1.3, and 6, by any Users or other individuals it grants access to the RiskProfiler Services.
The RiskProfiler Services, the RiskProfiler Data, the databases that store the RiskProfiler Data, and the selection, arrangement, structure, organization, and source code of all the aforementioned elements constitute precious trade secrets of RiskProfiler and its licensors and suppliers. Regardless of any conflicting provision in this Agreement, the Customer shall not, and shall not allow any third party or any Users to (i) provide or make the RiskProfiler Services or RiskProfiler Data accessible to any third party, either free of charge or for a fee, except as explicitly allowed by this Agreement, including Section 1.2; (ii) remove or alter any copyright, trademark, or other notices contained in the RiskProfiler Services or the RiskProfiler Data; (iii) utilize the RiskProfiler Services or the RiskProfiler Data except as expressly permitted in this Agreement; (iv) employ the RiskProfiler Services to publish or disclose any competitive benchmarking tests or analysis; (v) utilize the RiskProfiler Services or RiskProfiler Data in a manner that breaches applicable law, including, without limitation, using it to deliberately defame, denigrate, or malign any third party, or to participate in or enable, whether on behalf of the Customer, the User, or any other person or entity, any transactions that are prohibited by the U.S. economic sanctions managed by the Office of Foreign Assets Control, U.S. Department of the Treasury or use it to unlawfully access any third party’s network or systems or to compromise the security, integrity, or performance of the same; (vi) utilize the RiskProfiler Services or RiskProfiler Data to initiate or back any legal proceedings or arbitration against any third party, except as expressly permitted by Section 6.2; (vii) interfere with or disrupt the security, integrity, or performance of the RiskProfiler Services or RiskProfiler Data; (viii) attempt to gain unauthorized access to the RiskProfiler Services or its related systems or networks; (ix) access or use the RiskProfiler Services or RiskProfiler Data or any associated documentation to construct or offer a competitive product or service or to divulge such information for the purpose of generating revenue from security products or services; (x) attempt to reverse engineer or decompile the RiskProfiler Services; or (xi) use the RiskProfiler Services in relation to any document associated with the offering of securities (for instance, a prospectus or a “road show” presentation).
SECTION 2 — REMUNERATION AND PAYMENT PROCEDURES
Unless the Customer has procured the RiskProfiler Services through an accredited partner or reseller, the Customer will compensate the fees (the “Fees”) delineated in a quotation or an order form furnished by RiskProfiler (the “Order”). Except as otherwise indicated herein or in an Order, financial obligations to RiskProfiler are non-rescindable and payments rendered are non-reimbursable. Any refunds provided under this Agreement will be made to the entity that transferred the relevant Fee to RiskProfiler and, if applicable, the Customer will solely pursue the authorized partner or reseller to recover such refund.
The Customer will bear the burden for all sales, usage, and other analogous taxes stemming from the Customer’s purchase or utilization of the RiskProfiler Services, excluding taxes based on RiskProfiler’s income or revenues. The Customer will not deduct any taxes from any amounts payable to RiskProfiler.
The Customer will settle in full the amounts stated in any Order within thirty (30) days of receiving the invoice unless otherwise stipulated in the Order. Unless otherwise consented to in writing by RiskProfiler (including in an Order), (i) all remittances will be made by bank wire transfer conforming to RiskProfiler’s directives or by check issued by a U.S. bank, and (ii) all remittances will be devoid of all setoffs and made in U.S. dollars. If RiskProfiler does not receive payment within the allotted time, it will be deemed a material breach.
SECTION 3 — REPRESENTATIONS, WARRANTIES AND COVENANTS; INTELLECTUAL PROPERTY INDEMNIFICATION
Each Party hereby affirms, guarantees, and promises to the other that: (a) it possesses and will continue to possess complete right, power, and authority to enter into and fulfill this Agreement and all of the transactions envisioned by this Agreement; (b) no approval, consent, permit, or order from any government authority or other entity is mandated for the conclusion, delivery, and fulfillment of this Agreement by such Party; and (c) it will abide by all relevant laws and regulations in the provision of the RiskProfiler Services and in the utilization and access of the RiskProfiler Services, respectively. The Customer further affirms, guarantees, and promises that (y) all account and other information provided by the Customer is and will remain accurate in all significant aspects and if there are any substantial changes in such information during the Term, the Customer will notify RiskProfiler of such changes in writing; and (z) it possesses all necessary consents and permissions to provide any information it uploads or otherwise supplies to RiskProfiler in relation to the RiskProfiler Services.
EXCEPT FOR WHAT IS EXPLICITLY STATED IN SECTION 3.1: RISKPROFILER HEREBY REFUTES ALL EXPRESS AND IMPLIED WARRANTIES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, SUITABILITY FOR A PARTICULAR PURPOSE, ACCURACY, PUNCTUALITY, COMPLETENESS, RELIABILITY, ERROR-FREE OPERATION, SECURITY AGAINST UNAUTHORIZED ACCESS SUCH AS HACKING OR OTHER SIMILAR MEANS, AND NON-INFRINGEMENT. THE RISKPROFILER SERVICE AND THE RISKPROFILER DATA (INCLUDING ANY SUGGESTIONS OR FORECASTS) AND ANY THIRD-PARTY SERVICES PROVIDED IN CONJUNCTION WITH THEM, ARE OFFERED ON AN “AS IS” BASIS ONLY, WITHOUT ANY WARRANTIES WHATSOEVER, AND ARE SUBJECT TO MODIFICATIONS AT ANY TIME. THE CUSTOMER ASSUMES ALL RISKS OF DAMAGE OR LOSS FROM DEPENDING UPON OR UTILIZING THE RISKPROFILER SERVICE, THE RISKPROFILER DATA, ANY RESULTANT DATA AND ANY THIRD-PARTY SERVICES PROVIDED IN CONJUNCTION WITH THEM FOR DECISION-MAKING PURPOSES. THE CUSTOMER ACKNOWLEDGES THAT CERTAIN RISKPROFILER SERVICES DEMAND A SUPPORTED BROWSER AND THAT ACCESS TO THIRD-PARTY SERVICES PROVIDED WITH THE RISKPROFILER SERVICES MAY HAVE ADDITIONAL REQUIREMENTS. THE RISKPROFILER SERVICES AND RISKPROFILER DATA DO NOT CONSTITUTE INVESTMENT OR FINANCIAL COUNSEL, NOR RECOMMENDATIONS TO ACQUIRE, SELL, OR MAINTAIN SPECIFIC SECURITIES.
RiskProfiler will defend, at its own cost and with lawyers of its choosing, against any lawsuit brought against the Customer and its respective directors, officers, employees, and representatives, collectively referred to as (the “Indemnified Parties”) by a third party, if the lawsuit is predicated on a claim that the RiskProfiler Technology infringes any patents, trademarks, or copyright of a third party (the “Claim”). RiskProfiler will cover those costs and damages that are ultimately awarded to such third-party claimants in any such lawsuit, or in a settlement of such lawsuit, which are specifically attributable to the Claim.
The aforementioned indemnification obligations are contingent on the Customer (i) immediately providing RiskProfiler with written notice of any such lawsuit; (ii) granting RiskProfiler exclusive control of the defense of any such claim and all related settlement discussions; and (iii) offering assistance and full cooperation in such defense, upon RiskProfiler’s request and at RiskProfiler’s cost.
If the RiskProfiler Technology becomes, or in RiskProfiler’s opinion is likely to become the subject of an infringement claim, then RiskProfiler may, at its sole discretion and expense, either (i) replace or modify the RiskProfiler Technology so that it is non-infringing; (ii) secure for the Customer the right to continue using the allegedly infringing RiskProfiler Technology; or (iii) terminate the Customer’s right to use the RiskProfiler Technology and/or terminate this Agreement, in whole or in part, as appropriate, upon written notice to the Customer and refund the Customer (or authorized partner or reseller if the initial payment was made by such partner or reseller) any prepaid fees attributable to the remainder of the term of the Customer’s subscription to the applicable RiskProfiler Technology. The Customer will have the right to participate, at its expense, in the defense of any claim covered under this Section with counsel of its own choosing.
Notwithstanding the foregoing, RiskProfiler shall have no obligation under this Section or otherwise with respect to any infringement claim based on any use of the RiskProfiler Technology not in accordance with this Agreement; any use of the RiskProfiler Technology in combination with equipment, software, or data not supplied by RiskProfiler if such infringement would have been avoided but for the combination with other equipment, software, or data; any modification of the RiskProfiler Technology by any person other than RiskProfiler or as authorized by RiskProfiler in writing; or the Customer’s continued use of the allegedly infringing RiskProfiler Technology after receiving written notice to cease such use.
THIS SECTION ESTABLISHES RISKPROFILER’S TOTAL LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY RISKPROFILER’S PRODUCTS, TECHNOLOGY, OR SERVICES OR BY THEIR DISTRIBUTION, OPERATION, USE, OR RECEIPT.
SECTION 4 — LIMITATION OF LIABILITY
4.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, SUPPLIERS, PARTNERS, RESELLERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, INSURERS OR CONTRACTORS (“RELATED PARTIES”) BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS OR DATA OR OTHER ECONOMIC LOSS) ARISING FROM ANY CAUSE OF ACTION OR LEGAL THEORY, INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY OR FAILURE OF ESSENTIAL PURPOSE EVEN IF THE PARTY OR A RELATED PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 THE MAXIMUM LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS FOR INDEMNIFICATION, BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, WILL IN NO CIRCUMSTANCE EXCEED THE FEES PAID OR OWED TO RISKPROFILER IN THE PAST TWELVE (12) MONTHS UNDER THIS AGREEMENT.
4.3 NOTWITHSTANDING THE FOREGOING, SECTIONS 4.1 AND 4.2 WILL NOT APPLY WITH RESPECT TO ANY CLAIMS BASED ON A PARTY’S OBLIGATIONS UNDER SECTION 1.2 (USE OF SERVICES), SECTION 1.3 (RESTRICTIONS), SECTION 3.3 (INTELLECTUAL PROPERTY INDEMNIFICATION), OR SECTION 6 (CONFIDENTIALITY), OR ANY OTHER CLAIMS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY LAW.
SECTION 5 — TERM AND TERMINATION
This Agreement takes effect on the Effective Date and continues until all under this Agreement outlined subscriptions have either expired or been terminated and access to the RiskProfiler Services has been discontinued (such a period will be referred to as the “Term”).
The tenure of each subscription will be as specified in the applicable Order or as agreed upon between the Customer and the applicable authorized partner or reseller. Once a subscription concludes, access may be rescinded. Unless otherwise specified in an Order, subscriptions procured directly from RiskProfiler will auto-renew for additional periods equivalent to the expiring subscription term or one year (whichever is longer) at the prevailing list prices, unless either Party notifies the other of non-renewal at least thirty (30) days before the end of the relevant subscription term.
Either Party may instantly conclude this Agreement and any active Orders upon written notice if the other Party: (a) fails to rectify a significant breach of this Agreement within thirty (30) calendar days after receiving written notice of such breach (if capable of cure); (b) becomes insolvent or commits an affirmative act of insolvency; (c) initiates an assignment for the benefit of creditors or takes similar action; (d) submits a voluntary bankruptcy or similar petition; (e) assents to any involuntary bankruptcy or similar petition and such involuntary petition is not dismissed within ninety (90) days; or (f) is adjudged bankrupt or to a similar effect. If the Customer terminates this Agreement for cause only, RiskProfiler will provide the Customer with a pro rata refund of the pre-paid Fees actually paid to RiskProfiler, as of the effective date of termination
All provisions of this Agreement that reasonably may be interpreted or construed as surviving the Termination of this Agreement will endure the termination of this Agreement, including but not limited to the obligation to pay any accrued but unpaid fees and Sections 3, 4, 5.4, 6, and 7. Furthermore, after the Term, access to the RiskProfiler Services will be rescinded, but the Customer may retain and store, in any medium (including, but not limited to, electronic storage) any reports that include any RiskProfiler Data that was lawfully acquired under this Agreement prior to the expiration or termination of this Agreement, for use by the Customer only as permitted in Sections 1.2 and 1.3.”
SECTION 6 — CONFIDENTIALITY
“Confidential Information” refers to all information of either Party, whether technical, business, or of another nature (including trade secrets, know-how, technology, strategic partners, customers, business plans, promotional and marketing activities, finances, and other business affairs), disclosed by the disclosing Party to the receiving Party or learned by the receiving Party in the course of its discussions, business dealings, or physical or electronic access to the premises or services of the disclosing Party. This information is identified as being proprietary and/or confidential, or the receiving Party should reasonably know to treat it as proprietary and confidential due to the nature of the circumstances surrounding the disclosure. For clarity, (a) Confidential Information of Customer includes, but is not limited to, the list of organizations that Customer is monitoring, non-public content provided by Customer regarding its vendor risk management program and cybersecurity risk profile (“Customer Content”), and User information in the administrative portal, and (b) Confidential Information of RiskProfiler includes the RiskProfiler Services, RiskProfiler Data, and the terms, conditions, and pricing of this Agreement. Each Party will use reasonable care to keep the other Party’s Confidential Information confidential, disclosing it only to its employees, board members, legal counsel, accountants, partners, contractors, or consultants (in the case of Customer Content, RiskProfiler may disclose it to other RiskProfiler Services customers, as authorized by Customer), who need to know the information and who are subject to confidentiality obligations no less restrictive than those set forth here. A Party that receives the other Party’s Confidential Information will only use this information for purposes reasonably required to perform pursuant to this Agreement.
The definition of Confidential Information does not include information that the receiving Party can demonstrate through written documentation (i) was known to the receiving Party prior to its disclosure; (ii) was or becomes known or generally available to the public (other than by act of the receiving Party); (iii) is disclosed or made available in writing to the receiving Party without a confidentiality obligation by a third party with a bona fide right to do so; (iv) is independently developed by the receiving Party without the use of the other Party’s Confidential Information; or (v) in the case of Customer, Customer Feedback or other information provided for the purpose of making it available to third parties as part of the RiskProfiler Service (such as annotations marked “public” by Customer that explain aspects of its rating, or information provided by Customer to create, correct or update its rated IP addresses or domains). Customer grants RiskProfiler a worldwide, royalty-free, nonexclusive, transferable right and license to store, host, and display any Customer Content within the RiskProfiler Services, including sharing with other users of the RiskProfiler Services as authorized by Customer. Either Party may disclose Confidential Information if required by a regulator with competent jurisdiction over such Party or by compulsory legal process, provided that the receiving Party promptly notifies the disclosing Party upon any request or demand for such disclosure and cooperates with the disclosing Party to preclude or minimize any such disclosure.
The Parties acknowledge that any breach of this Section 6 may cause immediate and irreparable injury to the non-breaching Party, and that monetary damages may be inadequate compensation for such breach. In the event of such breach, the non-breaching Party will be entitled to seek injunctive relief, without the need to post bond, in addition to all other remedies available at law or in equity. This Section does not limit the liability or damages that may be assessed against a Party breaching any provisions of this Section 6.
SECTION 7 — MISCELLANEOUS
Any notice or communication under this Agreement given by any Party to any other Party must be in English, in writing, and is deemed properly given when sent to the intended recipient by U.S. mail, certified letter, receipted commercial courier, or email transmission. Notices to RiskProfiler should be sent to 331 East Main Street, Suite 200 Rock Hill, SC 29730, with a copy sent to [email protected]. Notices to the Customer shall be sent to the Customer’s email or other address specified in the Order, or to the email address of any then-current Customer administrative users. Either Party may change their address by giving the other Party notice in accordance with this Section.
Except for the rights granted hereunder, all right, title, and interest, including, but not limited to, all worldwide patent, copyright, trademark, trade secret, and any other rights in and to the RiskProfiler Services, the RiskProfiler Data, the RiskProfiler Technology, RiskProfiler’s Confidential Information, and RiskProfiler’s trademarks and service marks (including its logos), are retained by RiskProfiler and its licensors. RiskProfiler may derive aggregate and/or anonymized data from any use of or content provided within the RiskProfiler Services or Third-Party Services, and RiskProfiler retains all right, title, and interest in such aggregated and/or anonymized data, which will not include Customers Confidential Information or identify the Customer. The Customer will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title, and interest of RiskProfiler or its licensors in such intellectual property rights.
The Customer agrees that RiskProfiler may include its name and logo on its website and in external customer lists and presentations that may be published as part of RiskProfiler’s marketing and promotional efforts. RiskProfiler will remove the Customer’s name and/or logo from its marketing website and other marketing materials upon request at any time to [email protected].
The Customer may elect to provide suggestions, annotations, corrections, information, comments (including for enhancements, functionality or clarification) or other feedback (“Customer Feedback”) to RiskProfiler or other third parties working with RiskProfiler. The Parties agree that such Customer Feedback is given voluntarily, does not constitute Customer Content, and the Customer acknowledges and agrees that RiskProfiler will own all right, title, and interest in and to the Customer Feedback, all developments based on such Customer Feedback, and all intellectual property rights in and to the foregoing. The Customer hereby assigns to RiskProfiler all right, title, and interest it may have in and to the Customer Feedback and all intellectual property rights thereto and will cooperate with RiskProfiler as reasonably necessary to give full effect to such assignment.
This Agreement and any related claims or causes of action will be governed by, construed, and enforced in accordance with the internal laws of Wyoming, (excluding its conflicts of laws principles). The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under this Agreement. Any disputes arising from or relating to this Agreement will be resolved exclusively in the state or federal courts in Wyoming.
Except as otherwise permitted in this Agreement, neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party (which consent will not be unreasonably withheld). A Party may, without the written consent of the other Party, assign its rights together with its obligations under this Agreement to the surviving entity in a merger or consolidation, or to a purchaser of all or substantially all the assets of its business. Upon request, the Customer shall provide and/or execute appropriate documentation to evidence the transfer of the relevant RiskProfiler account(s). Any assignment or delegation in contravention of this provision will be null and void. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.
Any omission by either Party at any time to enforce compliance by the other Party or to assert a breach of any term of this Agreement will not be interpreted as undermining any subsequent right to do so.
RiskProfiler is an autonomous contractor. The clauses of this Agreement will not be interpreted to create any kind of partnership, agency or any other form of joint venture between the Customer and RiskProfiler, nor to designate either Party as the agent, employee or legal representative of the other.
Should the performance of any of the duties under this Agreement (excluding payment duties) by a Party be obstructed due to circumstances beyond that Party’s reasonable control, including but not limited to, fire, explosion, acts of God, epidemic, pandemic, infectious disease outbreaks, war, revolution, terrorism, civil unrest, unavailability of supplies or sources of energy or telecommunications, power failure, machinery breakdown, labor strikes, slowdowns, picketing or boycotts, or government/administrative restrictions on the importation or exportation of products, then that Party will be exempted from such performance while these circumstances persist and for an additional period as may be reasonably necessary for that Party to resume its performance.
Cumulative Remedies. Any unenforceable provision of this Agreement will not render any other remaining provision ineffective or invalid. Except as expressly provided herein, the rights and remedies of the Parties are not exclusive and are in addition to any other rights or remedies of the Parties existing in law or in equity.
Except as outlined herein, no augmentation or alteration of this Agreement will be binding on either of the Parties unless it is put in writing and signed by an authorized representative of each of the Parties.
This Contract embodies the complete agreement of the Parties related to its subject matter and overrules all prior discussions, proposals, understandings, or agreements of any kind between the Parties regarding its subject matter. Each Party acknowledges that in signing this Contract, they do not depend upon, and shall have no relief in relation to, any assertion or representation from any individual other than those explicitly detailed in this Contract. Any stipulations, documents, or terms and conditions that may be contained in any vendor portal, acknowledgment, purchase order, form, platform, clickwrap, or shrinkwrap that Customer provides are expressly declared null and void.
To the extent RiskProfiler provides any Third-Party Services to the Customer, such third-party service provider(s) are specifically designated as third-party beneficiaries of this Contract. Except for such third-party service providers, nothing explicit or implied in this Contract aims to bestow, nor shall anything herein bestow, any rights, remedies, duties, or liabilities whatsoever upon any individual other than the Parties and their permitted successors or assignees.
In case a disagreement between the Parties related to this Contract necessitates resolution by litigation or other proceedings, the prevailing Party shall be entitled to obtain reimbursement for all relevant reasonable costs and expenses (including, without limitation, legal fees) from the other Party, without limitation on appeal and in insolvency and any other legal proceeding.
The provision of personal data (i.e., names and email addresses used for account creation) is not mandatory for the use of RiskProfiler Services. If the Customer opts to provide personal data, it recognizes that such data may be accessed by or transferred to RiskProfiler in the United States and to its affiliates, service providers, consultants, partners, and resellers aiding RiskProfiler in offering the RiskProfiler Services globally as elaborated in the RiskProfiler Privacy Policy (found at https://riskprofiler.io/privacy and incorporated herein by reference). If the Customer is governed by the General Data Protection Law (“GDPR”) or other Applicable Data Protection Laws (as defined in our Privacy Policy), the Customer consents and acknowledges that RiskProfiler will process personal data under this Agreement according to the RiskProfiler Privacy Policy located at https://riskprofiler.io/privacy. If providing RiskProfiler with personal data will subject RiskProfiler to data localization laws (e.g., obliging it to change where it hosts its products and services based on the location of Customer’s Users), the Customer will ensure that all users use an email alias for account creation and will not provide RiskProfiler with any such personal data.
If the Customer elects to use the RiskProfiler logos as provided by RiskProfiler, either solely or with the RiskProfiler-provided industry sector rating (the “RiskProfiler Logo Data”), the Customer (a) will use the RiskProfiler Logo Data that pertains solely to the Customer and the Customer’s RiskProfiler-provided industry sector rating exclusively to inform third parties of its RiskProfiler rating (including by publicly displaying such data on its websites) and all goodwill arising from the use of the RiskProfiler Logo Data will benefit RiskProfiler and (b) will not: (i) modify the RiskProfiler Logo Data, including by removing any trademark notice or symbol; (ii) use the RiskProfiler Logo Data other than as expressly allowed or in a way that misrepresents the RiskProfiler Security Rating, is deceptive or misleading, or tarnishes or harms RiskProfiler or its trademarks (including the RiskProfiler Logo Data); or (iii) during the Term or thereafter, undertake any action that contests, challenges, infringes or impairs the validity, enforceability, scope of rights or title of RiskProfiler in any the RiskProfiler Logo Data or any mark that incorporates the RiskProfiler Logo Data. The right to use the RiskProfiler Logo Data is personal to the Customer, non-exclusive, non-transferable, non-assignable, non-sublicensable, and revocable by RiskProfiler at any time, and for any reason and, upon such revocation, the Customer must immediately cease all use of the RiskProfiler Logo Data.
The RiskProfiler Services may encompass an online customer collaboration community provided by RiskProfiler (the “Customer Community”). If the Customer chooses to participate in the Customer Community, the Customer will behave in accordance with laws and in a respectful manner and acknowledges that any information posted in the Customer Community will not be treated as Customer Confidential Information hereunder. RiskProfiler may discontinue the Customer Community at any time.
If the Customer is an entity of the United States federal government and if any software is licensed under this Agreement, such software is defined as “commercial computer software,” as stated in Federal Acquisition Regulation (“FAR”) 2.101. Following FAR 27.405-3, FAR 52.227-19, and/or Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202-1, as applicable, any software or other products or services supplied to the Government adhere to RiskProfiler’s standard commercial license.
