THESE TERMS OF SERVICE (the “Agreement”) GOVERN CUSTOMER’S RECEIPT, ACCESS TO AND USE OF THE SERVICE PROVIDED BY RECIPROCITY, INC. (“Reciprocity”). IN ACCEPTING THIS AGREEMENT BY (A) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, (B) USING THE SERVICE, OR (C) CLICKING A BOX INDICATING ACCEPTANCE, CUSTOMER AGREES TO BE BOUND BY ITS TERMS.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“Customer”); AND SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR THE APPLICABLE ENTITY DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR RECEIVE THE SERVICE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
THE PARTIES AGREE AS FOLLOWS:
- Service Description and Ordering. Reciprocity is the owner and operator of a governance, risk management, and compliance solution that includes: a platform, applications, API(s), and an online, hosted dashboard (“Service”). Specific business terms associated with Customer’s subscription to the Service will be stated in one or more ordering documents executed by the parties (or Customer and a Reseller) that reference this Agreement and are hereby incorporated into this Agreement by reference (“Order Form”). The Service may also be further described on an Order Form. This Agreement governs all Order Forms and all use of the Service, and any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. The Service may also include questionnaire templates, compliance frameworks, help documents, and other documents or information that can assist Customer in managing its governance, risk management, and compliance (“Seed Data”). If permitted by Reciprocity, Customer may access and use the Service for evaluation purposes prior to entering into an Order Form with Reciprocity (“Proof of Concept” or “POC”). Such evaluation period will be for a maximum of two (2) weeks unless extended by Reciprocity (email will suffice) (“POC Period”). If Customer is accessing and using the Service during a POC Period, the terms of Section 14 will apply.
- Subscriptions and Licenses. Access to and use of the Service is sold on a subscription basis. Business terms related to Customer’s subscription to the Service, including the length of Customer’s subscription term (“Subscription Period”), will be contained on one or more Order Forms. Subject to Customer’s compliance with the terms of this Agreement (including any Order Forms) Reciprocity (a) will provide Customer and its employees and contractors working for the benefit of Customer (“Users”) with access to and use of the Service, and (b) grants Customer a worldwide, non-transferrable (except as otherwise permitted herein), non-sublicensable, limited, royalty-free license to copy and use Reciprocity’s technical documentation regarding the Service that is generally published to Reciprocity’s customers (“Documentation”), in each case solely during the Agreement Term (as defined below) for the internal business purposes of Customer. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Reciprocity to resell the Service.
- Users. Customer is responsible for its Users’ use of the Service. The Service contains customizable settings allowing each User to give permission to other Users to perform various tasks within the Service (“Permissions”). It is also solely Customer’s responsibility to set and manage all Permissions, including which Users have the ability to set such Permissions. Accordingly, Reciprocity will have no responsibility for managing Permissions and no liability for the Permissions set by Customer and its Users. Customer may, at its option, provide access to the Service and Documentation to its Affiliates (defined below), in which case all rights granted, and obligations incurred, under this Agreement will also inure to the benefit of such Affiliates. Customer represents and warrants that it is fully responsible for any breach of this Agreement by its Affiliates and that Customer has the power to negotiate this Agreement on behalf of its Affiliates. Customer will also be responsible for all payment obligations under this Agreement regardless of whether the use of the Service is by Customer or its Affiliates. Any claim by an Affiliate against Reciprocity will be brought by Customer and not the Affiliate. For the purposes of this Agreement “Affiliate” will mean of a party will mean an entity directly or indirectly controlling, controlled by or under common control with that party (where “control” means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
- Access Credentials. Upon execution of an Order Form, Reciprocity will provide a single User (designated by Customer) with access credentials that will allow Customer to log into the Service, manage the administrative functions of Customer’s instance of the Service (e.g., add or remove Users), and access the Service. Customer will be responsible for the secure maintenance of access credentials to the Service. Customer will use reasonable efforts to prevent any unauthorized use of the Service and immediately notify Reciprocity in writing of any unauthorized use that comes to Customer’s attention. Customer is responsible for all use of the Service that occurs through its access credentials.
- Service Level Agreement and Support. Reciprocity will provide basic technical support (“Basic Support”) for and make the Service available to Customer in accordance with the performance standards stated in the service level agreement, the current version of which is located at https://reciprocity.com/servicelevel (“SLA”). Basic Support will be provided as part of Customer’s purchase of a subscription to the Service. Customer may choose to purchase support services in addition to Basic Support; details regarding Customer’s purchase will be stated on the applicable Order Form (“Premium Support”) (Basic Support and Premium Support are collectively “Support Services”). The SLA may be updated by Reciprocity from time to time by posting a revised version of the SLA to the forgoing URL or a successor URL provided by Reciprocity to Customer in writing. Notwithstanding anything else to the contrary, any changes to the SLA will not materially degrade Reciprocity’s obligations under the SLA from those described at the foregoing URL on the Effective Date.
- Reports. As part of its use of the Service, Customer may provide information, data and other content through the Service (“Customer Data”). Customer may use the Service to generate reports that include Customer Data (“Reports”). Customer owns and will continue to own all right, title, and interest in and to any Customer Data that may be contained in the Reports. The templates used for, Seed Data within, and layout of such Reports is and will continue to be part of the Service and owned by Reciprocity as further described below. Reciprocity hereby grants Customer a worldwide, non-exclusive, non-transferable (except as otherwise permitted herein), non-sublicensable license to access, use and download copies of the Reports for Customer’s internal business purposes only.
- Use Restrictions. Customer will comply with any limitations on its use of or access to the Service stated on an applicable Order Form. Customer also agrees that it will not and will not allow third parties or Users of the Service to directly or indirectly (a) modify, translate, copy or create derivative works based on the Service, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Reciprocity-branding contained in or on the Service, (e) test, evaluate, or otherwise use the Service with any products competitive with the products of Reciprocity; (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, or (g) use or access the Service to build or support and/or assist a third party in building or supporting products or Service competitive to the Service, or (h) use the Service in violation of applicable law. If Reciprocity reasonably believes that Customer has breached or is breaching the terms of this “Use Restrictions” section or the “Access Credentials” section in a manner that, in Reciprocity’s reasonable discretion, has caused or is likely to cause material harm to Reciprocity, the Service, or Reciprocity’s other customers, then Reciprocity reserves the right to suspend Customer’s use of or access to the Service. Reciprocity will provide Customer with notice of such suspension as soon as reasonably practicable given the circumstances and, unless Customer’s breach was willful or otherwise infringes on the intellectual property rights of Reciprocity, work with Customer to cure the breach and thereafter restore Customer’s access to and use of the Service.
- Onboarding Services. Reciprocity may provide, if specifically described in an applicable Order Form, certain onboarding services to Customer (“Onboarding Services”). Onboarding Services may include but not limited to: (a) training; (b) assistance with Customer Data integration into the Service; (c) set-up, configuration, and integration of the Service with Customer’s systems, and (d) such other onboarding services as may be agreed upon by the parties under an Order Form. Customer agrees that there may be limitations on the Onboarding Services and, if so, such limitations will be stated in the Order Form. Customer also understands and agrees that Reciprocity’s ability to provide the Onboarding Services, and therefore access to the Service, may be adversely affected if Customer does not provide reasonable assistance to Reciprocity in its performance thereof. Accordingly, Reciprocity will not be liable or responsible for any failure to provide the Service or Onboarding Services that results from Customer’s lack of reasonable cooperation during the onboarding process.
- Professional Services. Reciprocity may agree to provide certain consulting services (“Professional Services”) to Customer pursuant to an Order Form stating details regarding the Professional Services to be provided. If Customer has purchased Professional Services under an Order Form, the Professional Services Terms set forth at https://reciprocity.com/proserv will apply.
Fees and Payment.
- Fees. Customer will pay all fees specified in applicable Order Forms (“Fees”). Except as otherwise stated herein or in an Order Form, (i) Fees are based on the Service, Onboarding Services, Premium Support, or Professional Services purchased and not actual use, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Period. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars. As Reciprocity’s business grows and changes, Reciprocity may modify its fees or add new fees. Any new or revised fees will become effective only upon renewal of the applicable Order Form and provided that Reciprocity gives Customer at least forty-five (45) days’ prior written notice of such new or revised fees. If Customer is purchasing access to the Service, Onboarding Services, Premium Support, or Professional Services through a Reseller, then Fees will be due as determined between Customer and the Reseller.
- Invoicing. Fees will be invoiced in advance in accordance with the relevant Order Form. If no payment terms are stated on the Order Form, Fees are due thirty (30) days from the date of Customer’s receipt of the invoice. Customer is responsible for providing complete and accurate billing and contact information to Reciprocity and notifying Reciprocity of any changes to such information. If Customer is purchasing access to the Service, Professional Services, Premium Support, and Onboarding Services through a Reseller, then the payment terms will be as determined between Customer and Reseller and the applicable Fees will be paid to the Reseller.
- Failure to Pay. If any invoiced amount is not received by Reciprocity by the applicable due date and provided that Reciprocity has given Customer written notice (email acceptable) of the non-payment and ten (10) days from the date of Reciprocity’s notice to cure such non-payment; then, without limiting Reciprocity’s other rights or remedies, (a) Reciprocity may suspend Customer’s access to the Service or cease providing any Professional Services, Support Services, or Onboarding Services, as applicable, and (b) the unpaid amounts may accrue late interest at the rate of 2.0% of the unpaid amount per month, or the maximum rate permitted by law, whichever is lower.
- Payment Disputes. Reciprocity will not exercise its rights under the “Failure to Pay” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Customer must notify Reciprocity of any payment disputes in writing within thirty (30) days of Customer’s receipt of the applicable invoice.
- Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Reciprocity has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Reciprocity will invoice Customer and Customer will pay that amount unless Customer provides Reciprocity with a valid tax exemption certificate authorized by the appropriate taxing authority in advance. For clarity, Reciprocity is solely responsible for taxes assessable against it based on its income, property, and employees.
- Adding Users. Customer may contact Reciprocity at any time to purchase access to the Service for additional Users; the purchase will be made effective once the parties execute an Order Form for such additional Users. Following execution of such Order Form, Customer will be invoiced accordingly and will pay such invoice as required under the “Invoicing” section above. The number of User subscriptions purchased under an Order Form cannot be decreased during the Subscription Period; the number of User subscriptions purchased may only be decreased upon renewal of the applicable Order Form.
Term and Termination.
- Agreement Term. The term of this Agreement will commence on the start date of the first Order Form entered into by Customer and Reciprocity for the Service and continue until all Order Forms have expired or been terminated (the “Agreement Term”). The term of each Order Form will be as stated therein.
- Termination for Cause. If a party materially breaches the terms of this Agreement (or any Order Form), the other party may terminate this Agreement (or any applicable Order Form) by providing reasonably detailed written notice of the material breach to the breaching party and thirty (30) days following such notice to cure the breach. If after such thirty (30) day period the breach remains uncured, then this Agreement and all Order Forms, or the particular Order Form that is the subject of the breach, will immediately terminate.
- Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination for Cause” section above, Reciprocity will provide Customer with a refund of any prepaid Fees covering the remainder of any applicable Subscription Periods following the effective date of termination. If this Agreement is terminated by Reciprocity in accordance with the “Termination for Cause” section above, Customer will pay any unpaid Taxes, interest charges (if applicable), and Fees to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any amounts payable to Reciprocity for the period prior to the effective date of termination.
- Customer Data Portability and Deletion. Upon request by Customer made within thirty (30) days in writing (email being sufficient) after the effective date of termination or expiration of this Agreement, and unless otherwise agreed upon by the parties, Customer will be provided with access to the Service for the sole purpose of downloading or exporting Customer Data. After such period, Reciprocity will have no obligation to maintain or provide any Customer Data, and will, unless legally prohibited from doing so, thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control.
- Effect of Termination. Upon termination or expiration of this Agreement, (i) any access rights or licenses granted by Reciprocity hereunder will immediately terminate; and (ii) Customer will stop using or accessing the Service, and (iii) each party will either return or destroy the other party’s Confidential Information. The following Sections will survive any expiration or termination of this Agreement: the sections titled “Fees and Payment”, “Term and Termination”, Intellectual Property Rights”, “Warranty Disclaimer” “Limitation of Liability”, “Indemnification”, “Confidentiality” and “General Terms.”
Intellectual Property Rights.
- Customer Data. Customer hereby grants Reciprocity a non-exclusive, worldwide, royalty-free, fully paid-up right and license to use, reproduce, create derivative works of, and display the Customer Data solely for the purpose of providing the Service to Customer. Except as provided for herein, Customer retains all right, title, and interest in and to the Customer Data, including any Customer Data incorporated into Reports.
- Reciprocity’s Rights in the Service. Reciprocity owns all right, title and interest in and to the Service (including Seed Data) and the Documentation, including all updates, upgrades, bug fixes, changes, patches, or other modifications to the foregoing or derivative works of the foregoing including all related intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly stated in this Agreement. For the avoidance of doubt, Customer has no right to receive a copy of the software underlying the Service.
- Service Data. Reciprocity may collect aggregated, anonymized data regarding the performance and operation of the Service that results from Reciprocity’s customers’ use of the Service (“Service Data”). Reciprocity’s use of Service Data will never include disclosure of personal, identifying information of the Customer or its Users. Reciprocity will retain all right, title and interest in and to the Service Data.
- Feedback. Customer may from time to time provide suggestions, comments or other feedback specifically with respect to the Service, Onboarding Services, Support Services, or Professional Services (“Feedback”). For the avoidance of doubt, Feedback will only be suggestions, comments or other feedback provided to Reciprocity regarding the Service, Professional Services, Support Services, or Onboarding Services and will not include Customer Data. Reciprocity may want to incorporate Feedback into its Service, Professional Services, Support Services, or Onboarding Services and this clause provides Reciprocity with the necessary rights to do so. Customer hereby grants Reciprocity and its assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback without obligation or restriction, except that Reciprocity will not identify Customer as the provider of such Feedback.
- Reciprocity’s Warranties. Reciprocity represents and warrants that (i) it will comply with all applicable federal, state and local laws and regulations of the United States with respect to its business operations under this Agreement and all applicable laws of the United States, United Kingdom and European Union (if Customer Data will include data from persons domiciled in the United Kingdom or European Union) with respect to its processing and use of Customer Data; (ii) the Service will substantially comply in all material respects with the Documentation, (iii) it will provide the Service and any related services in a professional and workmanlike manner, (iv) it has used commercially reasonable efforts to ensure that the software underlying the Service and the environment used for the Service contain no Harmful Code, and (v) it uses commercially reasonable efforts to prevent the introduction of Harmful Code into the software underlying the Service and the environment used for the Service. For purposes of this warranty, “Harmful Code” includes any malicious code containing viruses, Trojan horses, time bombs, worms or like destructive code or code that self-replicates or computer instructions, circuitry or other technological means designed to permanently disrupt, damage, or interfere with Customer’s use of the Service or Customer’s own computer systems. If the Service or other related services, if any, are not provided in accordance with the above warranty, Customer will promptly notify Reciprocity and Reciprocity will make commercially reasonable efforts to rectify such non-compliance; if Reciprocity is not able to so modify or otherwise fix the Service or re-preform the related services, Reciprocity will terminate this Agreement and refund any unused, pre-paid Fees to Customer. The foregoing remedy is Customer’s sole remedy and Reciprocity’ sole liability if Reciprocity breaches the terms of subsections (ii) and (iii) of this “Reciprocity’s Warranties” Section.
- Mutual warranties. Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.
- Customer Warranties. Customer represents and warrants that (i) it has obtained all rights and consents as may be required (by law or otherwise) to transfer, post, submit, and use any Customer Data as contemplated by this Agreement; and (ii) the Customer Data and Reciprocity’s use of it as contemplated by this Agreement will not violate any law or infringe any third-party’s rights, including but not limited to any intellectual property or privacy rights.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THE “WARRANTIES” SECTION ABOVE, RECIPROCITY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS, IMPLIED, ARISING BY LAW OR OTHERWISE) REGARDING THE SERVICE AND ANY OTHER SERVICES PROVIDED HEREUNDER AND ITS PERFORMANCE OR SUITABILITY FOR CUSTOMER’S INTENDED USE, INCLUDING ANY REPRESENTATIONS OR WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EXCEPT AS SET FORTH ABOVE, THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITH ALL FAULTS, DEFECTS AND ERRORS. FOR THE AVOIDANCE OF DOUBT, RECIPROCITY MAKES NO WARRANTY, GUARANTY, COMMITMENT OR OTHER OBLIGATION RELATED TO THE RESULTS OF THE SERVICES (INCLUDING RISK ASSESSMENTS) AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH REPORTS OR OTHER RESULTS. CUSTOMER UNDERSTANDS THAT RISK IDENTIFICATION AND ANALYSIS VARY ACROSS EVERY ORGANIZATION; IT IS CUSTOMER’S RESPONSIBILITY TO ULTIMATELY MAKE ITS OWN RISK ASSESSMENTS.
- Limitation of Liability. EXCEPT FOR CUSTOMER’S BREACH OF THE “USE RESTRICTIONS” SECTION, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, AND (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED THE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Reciprocity’s Indemnification. Reciprocity will defend, indemnify, and hold Customer and its officers, directors, and employees harmless against any third party claim or action brought against Customer to the extent based on (a) the allegation that the Service infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (b) the gross negligence, fraud, or willful misconduct of Reciprocity, and Reciprocity agrees to pay any settlements that Reciprocity agrees to in a writing signed by Reciprocity’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of either that are (a) not provided by Reciprocity, (b) combined with other products, processes or materials that are not reasonably contemplated by Reciprocity or the Documentation, or (c) where Customer’s use of the Service is not in accordance with this Agreement or the Documentation.
- Customer Indemnification. Customer will defend, Indemnify, and hold Reciprocity and its officers, directors, and employees harmless against any third party claim or action brought against Reciprocity to the extent based on (a) the allegation that the Customer Data infringes such third party’s rights (including intellectual property rights such as patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (b) the gross negligence, fraud, or willful misconduct of Customer, and Customer agrees to pay any settlements that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
- Procedures. The indemnifying party’s obligations under this “Indemnification” Section are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim, (b) granting the indemnifying party sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense. Notwithstanding anything else to the contrary in this Agreement, the indemnifying party’s obligations under this “Indemnification” section are limited to its obligations under this “Procedures” section, payment for the cost of defense of the third party claim incurred by the indemnifying party and the payment of (i) any settlements agreed to by the indemnifying party in a writing signed by an officer of the indemnifying party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
- Options. If Customer’s use of the Service has become, or in Reciprocity’s opinion is likely to become, the subject of any claim of infringement, Reciprocity may at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) modify the Service to make it non-infringing, (c) substitute a material equivalent for the Service, or (d) if Reciprocity, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused fees for the remainder of the then-current Subscription Period as stated on the applicable Order Form.
- Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS “INDEMNIFICATION” SECTION STATES RECIPROCITY’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
- Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Reciprocity includes the Service; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Reciprocity may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Data Security. Reciprocity has established and implemented an industry standard information security program regarding the protection of Customer Data, including administrative, technical and physical security processes. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or its Users). With respect to personally identifiable information contained in the Customer Data or otherwise provided by Customer to Reciprocity, Reciprocity will at all times comply with the terms of its data processing agreement, the current version of which is located at https://reciprocity.com/dpa (“DPA”). Provided that Reciprocity will not materially degrade its security practices, Reciprocity may modify or change the DPA upon prior, written notice to Customer. Notwithstanding the foregoing, Customer is responsible for maintaining appropriate security, protection and backup of its hardware, software, systems, information, and Customer Data. Notwithstanding the foregoing, Customer is responsible for maintaining appropriate security, protection and backup of its hardware, software, systems, information, and Customer Data. As Reciprocity has no access to Customer’s systems, Reciprocity is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any hardware, software, systems, information, or Customer Data on such systems.
- Insurance. During the term of this Agreement, Reciprocity will maintain the insurance policies with the applicable limits described in Reciprocity’s insurance commitments, the current version of which is located at https://reciprocity.com/insurance-commitments. All such insurance policies will be placed with insurers having an AM Best Rating of A- VIII or better. Provided that Reciprocity will not materially reduce its insurance commitments, Reciprocity may change or modify its insurance policies by posting new commitments at the foregoing URL or a successor site provided to Customer in writing.
- Publicity. Provided that, and only if, Customer has given its prior, written consent, Customer grants Reciprocity the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Reciprocity’s website and in other public or private communications with its existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to Reciprocity from time to time.
- Third Party Products, Links, and Information. The Service may allow Customer to integrate with third party products, services, materials, or information, or links thereto that are not owned or controlled by Reciprocity (“Third Party Applications”) (e.g. Slack). As Reciprocity does not own or operate such Third Party Applications, the providers of such Third Party Materials may require Customer to enter into separate agreements in order to use their products or services. If Customer or any User accesses any third party website or service, it does so at its own risk, and Customer acknowledges and agrees that this Agreement does not apply to Customer or any User’s use of such Third Party Applications. Reciprocity does not endorse or assume any responsibility for any such Third Party Applications and Customer expressly relieves Reciprocity from any and all liability arising from its or its User’s use of any Third Party Applications.
- Changes. Reciprocity may modify this Agreement from time to time, e.g. to add terms related to new product or service offerings. Reciprocity will notify Customer of any such modifications (in accordance with the Section titled “Email Communications” below) and give Customer the opportunity to review the updated version of this Agreement, as well as accept such updated version. If Customer does not agree to any modifications to this Agreement, it should not click to accept the updated version of the Agreement or continue to use the Service. The current version of the Agreement will be published at https://reciprocity.com/termsofservice, or a successor site provided by Reciprocity to Customer. If at any time Customer enters into a signed agreement with Reciprocity for Customer’s access to the Service, such executed agreement will govern.
- Force Majeure. Except for Customer’s payment obligations hereunder, neither Reciprocity nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-Service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, pandemics, fires, acts of God, war, terrorism, and governmental action.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- No Third-Party Beneficiaries. Except as otherwise expressly stated herein there are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
- Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, (b) notices to Reciprocity must be sent to [email protected]; and (c) all legal notices to Customer will be sent to the physical address in the applicable Order Form, and/or to the email provided through the Service or otherwise provided by Customer. Notices will be deemed to have been duly given (a) the business day after it is sent in the case of notices through email; (b) the same day in the case of notices through the Service; and (c) three (3) days after being sent by prepaid certified or registered U.S. mail.
- Waivers. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
- Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Reciprocity may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer may assign this Agreement to an Affiliate or third party who is not a direct competitor of Reciprocity, provided that if any Order Forms include unlimited access rights to the Service, Reciprocity will have the right to (a) modify Fees to address changes in usage as a result of such assignment, or (b) terminate the applicable Order Form. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in New Castle County, Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
- Entire Agreement. This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the Order Form, (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
- Proof of Concept (“POC”). If Customer is accessing and using the Service during a POC, the following terms will also apply: For the avoidance of doubt, access during a POC will be free of charge. Customer understands and agrees that during a POC, the Service is made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranties, indemnities, or support commitments of any kind. In addition, the following limitation of liability will apply during a POC: EXCEPT FOR CUSTOMER’S BREACH OF THE “USE RESTRICTIONS” SECTION, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, AND (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED ONE THOUSAND UNITED STATES DOLLARS ($1,000). THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.