Terms of Service for Cellularm
RACO provides a subscription service to which you intend to subscribe. This Agreement sets forth the terms pursuant to which you will be permitted access to the Service and becomes effective upon the earlier of your first use of the Service or entering into your Purchase Order.
The Parties agree as follows:
1. Definitions
“RACO Manufacturing & Engineering Co. (RACO)” means RACO, a California-based Corporation, and its Affiliates.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party. For purposes of the preceding sentence, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this RACO Cellularm Connectivity Agreement, including the SLA (as may be updated from time to time), and any schedules or exhibits to this Agreement.
"Confidential Information" means all your and RACO’s information, material, and data or any third party (i) labeled or designated in writing as confidential or proprietary, (ii) which is verbal or otherwise intangible and the disclosing party advises the receiving party is proprietary or confidential or (iii) which, in view of the nature of such information and/or the circumstances of its disclosure the receiving party knows or reasonably should know is confidential or proprietary, including, but not limited to, software, and internal developments. Confidential Information does not include information (i) which is or becomes publicly known without any fault of or participation by the receiving party, (ii) was in receiving party’s possession prior to the time it was received from disclosing party or came into receiving party’s possession thereafter, in each case lawfully obtained from a source other than disclosing party and not subject to any obligation of confidentiality or restriction on use, or (iii) is independently developed by the receiving party by persons not having exposure to disclosing party’s Confidential Information.
“Documentation" means RACO’s electronic and hardcopy user guide for the Service, which may be updated from time to time.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, hotfixes, changes, release notes, upgrades, and changes to the Service and Documentation, as developed by RACO’s and made generally available for Production use without a separate charge to you.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents, and other proprietary rights issued, honored, or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective Party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
“Personal Data” means any information that is related to an identified or identifiable individual and has been provided by you or your Affiliates as Subscriber Data within the Service to enable RACO to process the data on your behalf.
“Production” means the use by you, your Employee or other Authorized Party to use the Service (i) to administer Employees; (ii) to generate data for your books/records; or (iii) in any decision support capacity.
“Security Breach” means (i) any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Subscriber Data; provided that an incidental disclosure of Subscriber Data to an Authorized Party or RACO, or incidental access to Subscriber Data by an Authorized Party or RACO where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition unless such incidental disclosure or incidental access triggers a notification obligation under any Law and (ii) any security breach (or substantially similar term) as defined by Law.
"Service" means RACO’s connectivity agreement that provides cellular connectivity to RACO Cellularm hardware devices
“SLA” means the Service Level Agreement, which may be updated by RACO from time to time. No update shall materially diminish RACO’s responsibilities under the Service Level Agreement.
"Subscriber Data" means the electronic data or information submitted by you, your employees or Authorized Parties to the Service.
“Subscriber Input” means suggestions, enhancement requests, recommendations or other feedback provided by you, your Employees, and Authorized Parties relating to the operation or functionality of the Service.
“Subscription Service Fees” means all amounts invoiced and payable by you for the Service.
“Supported Version of the Service” means a version of the Service that is listed as a supported version of the Service in RACO’s lifecycle policy. All versions of the Service are supported for at least 18 months after their initial release.
“Term” has the meaning set forth in the following sections
“Third Party Applications” means applications licensed from third parties which connect with or interoperate with the Service.
2. Provision of Service.2.1 RACO Obligations. During the Term of this Agreement, RACO shall: (i) make the Service available to you in accordance with the Documentation, the SLA and pursuant to the terms of this Agreement; (ii) not use Subscriber Data except to provide the Service to Authorized Parties, or to prevent or address service or technical problems, or to verify Improvements to the Service, or in accordance with this Agreement and the Documentation, or in accordance with your instructions; and (iii) not disclose Subscriber Data to anyone other than Authorized Parties in accordance with this Agreement. RACO reserves the right to deny access to the Service to anyone at any time in the event that RACO, in good faith, believes it is necessary for purposes of ensuring your compliance with this Agreement or to protect the rights, property, and interests of RACO, its Affiliates, service providers and licensors.
2.2 Subscriber Obligations. You may enable access of the Service for use only by Authorized Parties solely for your internal business purposes and those of your Affiliates in accordance with the terms of this Agreement and the Documentation and not for the benefit of any third parties. You are responsible for all Authorized Party use of the Service and compliance with this Agreement. You shall: (a) have sole responsibility for the evaluation, selection and for the results obtained from the Service, (b) comply with all rules and regulations relating to the Service in the Documentation or sent to you by email or other electronic means as they may be amended from time to time, (c) have sole responsibility for the accuracy, quality, and legality of all Subscriber Data, (d) be responsible for all electronic communications, including those containing business information, account registration, financial information, Subscriber Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service, and (e) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, notify RACO promptly of any such unauthorized access or use, and cooperate with and assist RACO in identifying and preventing any unauthorized use, copying, or disclosure of the Service, the Documentation, or any portion of the Service or the You shall not: (i) use the Service in violation of Law or in such a manner as is likely to harm RACO, its Affiliates, service providers, licensors, suppliers and/or customers, (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, (iii) send or store Malicious Code in connection with the Service, (iv) interfere with or disrupt performance of the Service or the related data, (v) attempt to breach the security of the Service, or access or attempt to access data belonging to third parties, or (vi) attempt to gain access to the Service or its related systems or networks in a manner not set forth in this Agreement or the Documentation. You shall be liable for the acts and omissions of all of your Authorized Parties and Affiliates relating to this Agreement.
2.3 Failure to Maintain Supported Version of the Service In the event you do not maintain a Supported Version of the Service, then you will be charged a premium upon renewal of the Service.
2.4 Use Reporting. RACO reserves the right to gather data on usage of the Service to ensure that the Service is being used in accordance with the terms of this Agreement and the type of Service purchased by you. The Service monitors user counts, transaction volumes, resource level utilization, License Key numbers, server IP addresses and other information. In the event (a) transaction volumes or resource level utilization of your database exceeds, for any three (3) months during the trailing twelve (12) month period, the transaction volumes or capacity, respectively, purchased by you, or (b) any other unauthorized use of the Service is discovered, it shall be considered a material breach of this Agreement. You agree not to block, electronically or otherwise, the transmission of data required for the monitoring of compliance with this Agreement. Any blocking of data required for compliance may result in immediate termination of this Agreement.
2.5 Registration and Access Credentials. To access the Services, you must use a user account issued by us to Entity (“User Account”). To access the User Account, you will be required to use Access Credentials. You agree to: (a) provide accurate, current and complete user information about you as may be prompted by any registration forms in the Services; (b) maintain the security of the Access Credentials; (c) maintain and promptly update your user information, contact information and any other information you provide to us; (d) receive and promptly reply to communications from us electronically; (e) be fully responsible for your use of the User Account and any actions by others who have received the Access Credentials based on your acts or omissions; and (f) notify us immediately if you discover any use of the Access Credentials or SaaS Services that you did not authorize or that violates this Agreement.
3. Proprietary Rights.3.1 Ownership and Reservation of Rights to RACO Intellectual Property. RACO and its licensors own all rights, titles and interests in and to the Service, Documentation, and other Intellectual Property Subject to the limited rights expressly granted under this Agreement, RACO reserves all rights, title, and interest in and to the Service, and Documentation, including all related Intellectual Property Rights. No rights are granted to you other than as expressly set forth in this Agreement.
3.2 Access to and Use of Content. You and your Affiliates have the right to access and use the Service and Documentation subject to the terms of this Agreement and the
3.3 Restrictions. You shall not; (i) modify or copy the Service or create any derivative works based on the Service, (ii) modify or copy the Documentation or create any derivative works based on the Documentation, except for internal training purposes, (iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Parties as permitted by this Agreement, (iv) reverse engineer or decompile any portion of the Service, including but not limited to, any software utilized by RACO in the provision of the Service, (v) access the Service or Documentation in order to build any commercially available software product or service, or (vi) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
3.4 Ownership of Subscriber Data. As between RACO and you, you own your Subscriber Data.
3.5 Aggregated Statistical Information. RACO owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Statistical Information”). Nothing in this Agreement shall be construed as prohibiting RACO from utilizing the Aggregated Statistical Information for purposes of providing or improving the Service, benchmarking the Service performance, preparing statistics and system metrics, and marketing; provided however, that RACO’s use of Aggregated Statistical Information will not reveal your identity or your Personal Data to any third party.
4. Confidentiality.4.1 Confidentiality. A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party's prior written permission.
4.2 Protection. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
4.3 Compelled Disclosure. A disclosure by one Party of Confidential Information of the other Party to the extent required by Law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.
4.4 Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of the confidentiality protections described in this Agreement, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it is acknowledged by the Parties that any other available remedies are inadequate.
4.5 Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party. Subscriber Data shall not be subject to the exclusions set forth in this Section 4.5.
5. Subscriber Data.5.1 Privacy and Security. RACO has taken reasonable actions, including encryption of Subscriber Data during transmission and firewalls, to ensure that Subscriber Data is disclosed only to Authorized Parties. However, you acknowledge that the Internet is an open system and RACO cannot and does not warrant or guarantee that Subscriber Data will not be intercepted by third parties. RACO disclaims any liability for the interception of any Subscriber Data or electronic Notwithstanding the first sentence in this Section 5.1, RACO may disclose information you submitted to RACO if required by law or in the event that RACO, in good faith, believes disclosure is necessary to (i) comply with legal process, or (ii) protect the rights or property of RACO, its Affiliates, licensors or others. RACO does not sell or rent Personal Data to third parties for their marketing purposes without your explicit consent and RACO only uses your information as described in the Privacy Statement.
5.2 Subscriber Data Upon Termination. Upon termination of this Agreement, all Subscriber Data retained by RACO in the system database files shall be made available to you for a period of 30 days after the termination of this Agreement. Thereafter, all of Subscriber Data, if retained by RACO in the system database files, shall be made available to you only upon remittance to RACO of a reasonable fee to cover the servicing and handling of Subscriber Data.
5.3 Use of Subscriber Data. Notwithstanding Section 5.2, it is RACO’s practice to make backup copies of the Subscriber Data. You acknowledge and agree that RACO may store and maintain Subscriber Data for such period of time as it deems
5.4 Limitations on Use. RACO shall maintain in confidence, and shall not disclose to any third party, Subscriber Data, and RACO will not use Subscriber Data for any purposes other than the provision of the Service and as provided in Section 3.7 of this Agreement and RACO’s Privacy Statement.
5.5 RACO Remediation of Certain Unauthorized Disclosures. In the event that any unauthorized access to or acquisition of Personal Data is caused by RACO’s breach of its security and/or privacy obligations under this Agreement, RACO shall provide you notification as required by Law and pay the reasonable and documented costs you incur in connection with the following items: (a) costs of any required forensic investigation to determine the cause of the breach, (b) providing notification of the security breach to applicable government and relevant industry self-regulatory agencies, to the media (if required by Law) and to individuals whose Personal Data may have been accessed or acquired, and (c) operating a call center to respond to questions from individuals whose Personal Data may have been accessed or acquired for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition. NOTWITHSTANDING THE FOREGOING, OR ANYTHING IN THE AGREEMENT TO THE CONTRARY, RACO SHALL HAVE NO RESPONSIBILITY TO PAY COSTS OF REMEDIATION THAT ARE DUE TO RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD BY YOU OR YOUR EMPLOYEES, AGENTS OR CONTRACTORS.
6. Limitation of Liability.6.1 Limitation of Liability. In no event shall either party be liable to the other or any other party for any indirect, incidental, consequential, special, exemplary, or punitive damages (including damages for business profits, business interruption, loss of business information or similar losses), even if advised of the possibility of such damages.
6.2 No Third-Party Representations or Warranties. No third party is authorized by RACO to make any representation or warranty to you regarding the Service.
6.3 Third Party Liability Exclusion. Subscriber acknowledges that the Services furnished to RACO currently by third parties, including U.S. Mobile, Red Pocket Mobile, and/or Aeris Communications, Inc. (Third-Party Service Providers), utilize cellular telephone service furnished to Third-Party Service Providers by Carriers pursuant to agreements between such parties. Said agreements have certain terms, conditions and limitations regarding the provision of such services. SUBSCRIBER FURTHER ACKNOWLEDGES THAT THIRD-PARTY SERVICE PROVIDERS, OTHER CARRIERS AND RACO DISCLAIM ALL LIABILITY OF ANY NATURE TO SUBSCRIBER, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF SUBSCIRBER’S USE OF THIS SERVICE AND OTHER TELECOMMUNICATIONS SERVICES, AND SUBSCRIBER AGREES THAT IT SHALL HAVE NO CLAIMS, OF ANY KIND, AGAINST THIRD-PARTY SERVICE PROVIDERS, OTHER CARRIERS OR RACO WITH RESPECT THERETO.
7. Indemnification.7.1 By Subscriber. You shall indemnify, defend and hold harmless RACO from and against any and all claims, proceedings, damages, liability and costs (including reasonable attorneys’ fees) incurred by RACO in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this Agreement, and (ii) your or your Affiliates’ use of the Service, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. RACO reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of RACO.
8. Third-Party Applications.8.1 No Warranty of Third-Party Applications. RACO does not warrant any Third-Party Application regardless of who you may purchase or license the application from.
8.2 Use of Third-Party Application. Any agreement for use by you of a Third-Party Application is solely between you and the applicable third-party provider.
9. Term; Suspension of the Service; Termination.9.1 Term of Agreement. It is your responsibility to contact RACO regarding any potential expiration that you deem inappropriate. This Agreement will terminate upon expiration of the initial term or any renewal term should you fail to renew this Agreement.
9.2 Suspension of the Service. RACO reserves the right to suspend your and your Affiliates’ access to and /or use of the Service: (a) if any payment for the Service is due but unpaid but only after RACO has provided you with at least 30 days’ prior written notice, or (b) if RACO reasonably determines that your use of the Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or your use of the Service is causing immediate, material and ongoing harm to RACO or others.
9.3 Termination. Either Party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period, or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
9.4 Effect of Termination. Upon any termination of this Agreement, you shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the Service and RACO Confidential Information. Termination for any reason shall not relieve you of the obligation to pay any Subscription Service Fees accrued or due and payable prior to the effective date of termination, and termination for any reason other than for uncured material breach by RACO shall not relieve you of the obligation to pay all future amounts due.
10. General Provisions.10.1 Electronic Signatures. To demonstrate your assent to this Agreement, we may require you to click an “accept,” “agree,” or other assent indicator accompanying this Agreement. You understand that your activation of such indicator will constitute your electronic signature, and you acknowledge that such electronic signature is equivalent to your handwritten signature.
10.2 Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right.
10.3 Force Majeure. Except for your payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving RACO or your employees, respectively). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.4 Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due Subscription Service Fees are paid in full. Any attempt by a Party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.5 Modification of Terms. RACO reserves the right from time to time to modify the terms under which the Service is provided to its subscribers, including you, and as a result to modify the terms and conditions of this Agreement.