Terms Of Service Agreement
IMPORTANT NOTICE! Thank you for your interest in RIOT products and services. PLEASE SCROLL
THROUGH AND READ ALL OF THE FOLLOWING MASTER SUBSCRIPTION AGREEMENT TERMS
AND CONDITIONS (THE “AGREEMENT”) CAREFULLY BEFORE CONCLUDING THE ACTIVATIO
PROCESS. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND RIOT FOR YOUR
SUBSCRIPTION.
IF YOU REGISTER FOR A FREE TRIAL OF RIOT SERVICES THE APPLICABLE PROVISIONS OF THIS
AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL AND THOSE FREE SERVICES.
YOU WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND ALL OF ITS TERMS AND
CONDITIONS, AND TERMS AND CONDITIONS IMPOSED BY REQUIRED THIRD PARTY SERVICE
PROVIDERS, BY DOING ONE OR MORE OF THE FOLLOWING OR ALLOWING OR AUTHORIZING A
THIRD PARTY TO DO ONE OR MORE OF THE FOLLOWING FOR YOU: (1) CLICKING “I AGREE” OR
A SIMILAR AFFIRMATION AS APPLICABLE THAT APPEARS DURING ACTIVATION OF YOUR
SUBSCRIPTION, (2) EXECUTING AN ORDER FROM THAT REFERENCES THIS AGREEMENT OR (3)
USING THE SERVICE. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AND
THE TERMS AND CONDITIONS APPLICABLE TO REQUIRED THIRD PARTY SERVICES, EACH IN
THEIR ENTIRETY AND WITHOUT MODIFICATION OR ADDITION, THEN YOU DO NOT HAVE A
LICENSE TO USE THE SUBSCRIPTION.
THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY;
PERFORMANCE OR FUNCTIONALITY OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE
PURPOSES.
RIOT’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES EXCEPT
WITH RIOTS PRIOR WRITTEN CONSENT
THIS AGREEMENT WAS LAST UPDATED OCTOBER 12, 2021. IT IS EFFECTIVE BETWEEN YOU
AND RIOT AS OF THE DATE OF YOUR ACCEPTANCE OF THIS AGREEMENT.
- DEFINITIONS.
1.1 “Affiliate” means any entity that controls you, that you control or that is under common control with
you, where “control” means the ownership, directly or indirectly, of equity securities or other
ownership interests which represent more than 50% of the voting power of such affiliate.
1.2 “Agreement” means the terms and conditions that make up this Master Subscription Agreement,
including any amendments, addenda, or schedules to this Master Subscription Agreement.
1.3 “Customer Support” means assistance RIOT provides or makes available to you on-line or by
phone, email, chat or other means.
1.4 “Device” means a computer, workstation terminal, handheld PC, pager, telephone, smart phone,
or other electronic or wireless device you use to access any part of your Subscription.
1.5 “RIOT Equipment” means RIOT owned equipment such as RFID scanners and RFID printers
that is provided to you for use as part of your subscription.
1.6 “Documentation” means the specifications that are set forth in the Service help files and any
release-related notes, guides or manuals RIOT publishes specific to the version of the Service
made available as part thereof.
1.7 “Maintenance” means updates, upgrades, enhanced and new functionality, patches, and fixes for
the Service.
1.8 “On-Premise Software” means software that you may download to your on-premise computers or
other Device(s) or network to use with the Service.
1.9 “Privacy Policy” means RIOT’s privacy policy posted at http://www.riotinsight.com/legal
1.10 “Required Third Party Service” means a required service, software, or Subscription functionality
made available by a provider other than RIOT that RIOT makes a part of your Subscription.
1.11 “Reseller” means an independent third party authorized by RIOT to sell Subscriptions.
1.12 “RIOT” means RIOT INSIGHT INC.
1.13 “RIOT Technology” means images, text, software, music, sound, photographs, video, graphics,
applets, documentation, screen shots, displays, graphical user interfaces and software
incorporated into the Service and all copyright, trade secret, patent and patent applications,
trademark and other intellectual property rights in and to the Service, including, but not limited to,
object code, the underlying source code, algorithms, formulae, data structures, scripts, application
programming interfaces and protocols, all inventions (whether patentable or not), know-how,
ideas, discoveries, compositions, products, schematics, databases, drawings, designs, samples,
models, processes, procedures, data, information, manuals, notes, and any item marked
“confidential” or “proprietary”.
1.14 “Service” means the service, including related Maintenance, RIOT makes available to you
through or which utilizes a cloud or wireless environment as part of your Subscription and for
which you pay the applicable Subscription Fee.
1.15 “Subscription” means your access to and Use of the Service in a cloud or wireless environment,
Use of Supplemental Services and Required Third Party Services that RIOT makes available to
you as part of this Agreement.
1.16 “Subscription Fee(s)” means the purchase price you owe RIOT for access to the various
components of your Subscription.
1.17 “Subscription Term” means the period during which RIOT enables you to access your
Subscription and includes your initial Subscription and each renewal of your Subscription.
1.18 “Supplemental License Terms” means the additional terms and restrictions that are specific to
the Service and posted by RIOT at http://www.riotinsight.com/legal
1.19 “Supplemental Services” means optional software or services you may elect to include in your
Subscription.
1.20 “Use” means to activate the Subscription, execute the Service, and use Customer Support,
provided that: (a) you access the Subscription only from your Devices; and (b) you execute the
functionality of the Service during the Subscription Term (i) for its intended purpose solely in
connection with the management of the business that you and your Affiliates conduct, and (ii)
solely to the extent of any and all applicable limitations (whether as to the number or types of uses
or Supplemental Services you purchase).
1.21 “You”, “you”, Your”, and “your” means or refers to the company or person that RIOT has
registered as the licensee of the Subscription.
1.22 “Your Content” means the data and other information that you upload to or process through the
Service.
1.23 “Your Users” means individuals that access your Subscription through use of your network,
Devices or user ID(s) and a password(s). - LICENSE GRANT AND RESTRICTIONS.
2.1 License Grant. Subject to your compliance with this Agreement and payment of all applicable
Subscription Fees, RIOT grants you a limited, non-exclusive, non-transferable, non-sublicensable
and revocable license of the scope described in this Agreement to access and Use your
Subscription in accordance with instruction and documentation that RIOT provides only if you or
someone acting on your behalf and at your direction (such as your Reseller) has: (a) placed an
order with RIOT for an initial Subscription or a Subscription upgrade (such as for more users,
Supplemental Services, etc.) and RIOT has accepted such order; (b) accepted all of the terms and
conditions of this Agreement either before or during activation of your Subscription (as described
above); and (c) accepted or agreed to all of the terms and conditions that a third party imposes on
your use of a Required Third Party Service.
2.2 Required Third Party Services Your Subscription may include Required Third Party Services,
which are a required component of your Subscription.
2.2.1 Your use of a Required Third Party Service is subject to the terms and conditions imposed by the
Required Third Party Service provider(s). If you do not accept or agree to the terms and conditions
imposed by the Required Third Party Service providers, RIOT cannot grant you and you do not
have a license to the Subscription.
2.2.2 The Service is hosted on Amazon’s AWS platform, an Internet-scale cloud computing and services
platform hosted in Amazon data centers. Your use of the Service is subject to the following
Amazon terms, conditions and policies: (i) AWS Privacy Policy Statement:
http://aws.amazon.com/privacy; (ii) AWS Service terms: http://aws.amazon.com/serviceterms and
(iii) AWS Acceptable Use Policy: http://aws.amazon.com/aup/. Neither you, nor anyone accessing
the Service, may use AWS in any way prohibited by the AWS Acceptable Use Policy.
2.3 License Restrictions.
2.3.1 You are only authorized to access and Use the functionality of the Service through (i) your private
Internet or extranet using an Internet connection you provide or (ii) a wireless communication
network you own or subscribe to, on Devices you provide or the RIOT Equipment.
2.3.2 You may not install any components of the Service on your Devices unless RIOT provides express
instructions for you to do so.
2.3.3 You shall not: (i) rent, lease, sublicense, loan, sell, reuse, distribute, market, or commercialize
any portion of the Subscription or Service or Use the Service as part of a facility management,
timesharing, or service bureau arrangement or for software or application development; (ii)
duplicate any portion of the Service or Documentation or remove any proprietary notices or labels
from the Service, including, but not limited to, the RIOT name, RIOT logo, RIOT product names,
or names or logos of Required Third Party Service providers wherever they appear; (iii) transfer
or delegate any right granted to you under this Agreement or permit any parent, affiliate,
subsidiary or any other third party to use or benefit from any functionality found in the
Subscription, either directly or via a facility management, timesharing, service bureau or any
other access arrangement, except that you may Use the Subscription and Service to process the
data of an Affiliate only if your aggregate Use of the Service is limited to a single dataset; and (iv)
conduct any activity prohibited by Section 3.4. (Prohibited Activities)
2.3.4 Except to the minimum extent allowed by your local jurisdiction, you shall not rename files of, alter,
modify, reconstruct, translate, localize, decompile, disassemble, decrypt, reverse engineer,
discover, attempt to derive source code from, remove any proprietary notices from, or create
derivative works based upon, the Service, or Required Third Party Services, in whole or in part. If
your local jurisdiction allows any of these activities, you shall provide RIOT with ten (10) business
days’ prior written notice before conducting any of these activities. - RULES REGARDING USE OF YOUR SUBSCRIPTION.
3.1 You acknowledge that you have been made aware of and have met all technical requirements for
the Product, including, but not limited to, the requirement to have Internet access.
3.2 You shall (a) comply with all applicable laws and regulations pertaining to your Use of and access
to your Subscription; (b) prevent unauthorized access to your Subscription and promptly notify
RIOT of any unauthorized access or use; (c) Use the Subscription and Service only in accordance
with its documentation and this Agreement; (d) comply with all notices, policies, and instructions
RIOT provides regarding Your Content; and (e) keep confidential all user ID(s) and passwords
RIOT provides you to access and activate your Subscription.
3.3 You are solely responsible for (a) Your Users’ compliance with this Agreement, and (b)
maintaining the confidentiality of your user ID(s) and password(s), and for all activity that
occurs under your user ID(s) and password(s) unless the breach in confidentiality is
caused directly by RIOT. You shall promptly notify RIOT of any unauthorized activity or
breach of security that you discover.
3.4 Prohibited Activities. You shall not use the Subscription to and RIOT may suspend or terminate
your Subscription if you (a) provide RIOT with fraudulent information; (b) send spam or other
unsolicited or duplicative messages in violation of applicable laws; (c) store, distribute or transmit
material that is (i) obscene, threatening, libelous or otherwise unlawful or tortious (including
material harmful to children or in violation of third party privacy or intellectual property rights), or
(ii) contains viruses or other harmful or malicious code that may compromise the security or
functionality of any website, program, process, business or data; (d) use any tool, process, or
method to (i) collect or detect email addresses, financial information, or other information from
RIOT or other RIOT customers; or (ii) attempt to gain unauthorized access to the Subscription,
the Service, other accounts, computer systems or networks connected to or supporting the
Subscription through hacking, password mining or any other means; (e) post, upload, use framing
techniques to use or otherwise distribute copyrighted material without the consent of the
copyright holder; (f) Use the Subscription in any way that threatens the integrity, performance or
reliability of the Subscription infrastructure (including performance or stress testing), or in any
manner that works around any technical limitations in the Subscription; or (g) make or attempt to
make a local non-cache copy of any part of the Subscription. You shall not facilitate or aid a third
party in any activity described in this Section 3.4. (Prohibited Activities)
3.5 RIOT may charge you for any costs it incurs in connection with your breach of this Agreement,
including costs incurred to enforce your compliance. RIOT cannot monitor, has no control over, and
is not responsible for your internet connection, network, wireless connection, bandwidth, the content
of your device(s) and/or any other equipment you utilize. RIOT reserves the right to restrict, change,
suspend, or terminate your Subscription by any means if your access, Use, or connection to the
Service impairs or adversely affects RIOT’s operations or the Service, including Use of the Service
by others. - RIOT EQUIPMENT.
4.1 RIOT may provide to you RIOT Equipment such as RFID scanners and RFID printers for your use
as part of the Subscription.
4.2 Security Deposit Prior to taking possession of the RIOT Equipment, you may be required to deposit
with RIOT, in trust, a security deposit equal in the amount set forth on an applicable Order Form, as
security for your performance under this Agreement and for any damages caused to the RIOT
Equipment during the Subscription Term.
4.2.1 RIOT may use all or part of the Security Deposit to cover unpaid Subscription Fees and to repair any
damage to RIOT Equipment or loss of RIOT Equipment occuring during the Subscription Term.
4.2.2 The Security Deposit is not a limit on the amount RIOT is entitled to recoup under the Subscription
Agreement and you remain liable for any balance thereof.
4.2.3 You shall not apply or deduct any portion of any Security Deposit and shall not use any Security
Deposit at any time in lieu of payment of Subscription Fees.
4.2.4 If you breach any of the terms or conditions of the Agreement you shall forfeit any Security Deposit, as
permitted by applicable law, notwithstanding any additional rights RIOT may claim.
4.3 Recall Notice RIOT may recall and, if applicable, replace any RIOT Equipment upon ten (10) days
written notice to you.
4.4 Labels You shall not remove, alter, disfigure, or cover up any serial numbering, lettering, logo, or
insignia displayed on the RIOT Equipment.
4.5 RIOT Equipment Maintenance During the Subscription Term, RIOT shall provide you support and
maintenance for the RIOT Equipment including issuance of replacement devices, when necessary.
You are responsible for securely packaging and promptly returning replaced equipment to RIOT
utilizing the original replacement equipment packaging materials. If the replaced equipment is not
received by RIOT within fourteen (14) days, you will be charged an additional Subscription Fee for the
replacement equipment until such time as the returned equipment is received by RIOT.
4.6 RIOT Equipment Ownership, Liens, Location
4.6.1 RIOT is the sole owner of the RIOT Equipment and has sole title thereto
4.6.2 You warrant that you will not encumber the RIOT Equipment or RIOT’s respective interest in the RIOT
Equipment in any manner whatsoever, nor create or permit to exist any levy, lien or encumbrance
thereof except those created by or through RIOT.
4.6.3 You warrant to RIOT that you will not move the RIOT Equipment or any part thereof from the
authorized location without RIOT’s prior written consent.
4.7 Possession and Surender of Equipment
4.7.1 Possession of the Equipment shall be transferred to you in accordance with the Order Form and terms
of this Agreement.
4.7.2 Upon expiry or termination of the Subscription Term, you will surrender and return the RIOT Equipment
to RIOT in good condition and working order, ordinary wear and tear excepted, as it was at the
commencement of the Subscription Term. You will continue to be charged Subscription Fees under this
Agreement until RIOT receives the returned RIOT Equipment.
4.7.3 You agree to allow RIOT or RIOT’s agents the right to enter the premises where the RIOT
Equipment is located, at reasonable times and on reasonable notice, for the purpose of installing,
replacing or removing the equipment as permitted under this Agreement. If you are not the owner
of the premises you are responsible for obtaining necessary approval from the owner to perform
the activities specified above. You agree to supply RIOT with the owner’s contact information
including phone number, email and address, for such purposes, on request.
4.8 Risk of Loss and Insurance You assume any and all risk of loss or damage to the RIOT Equipment
during the Subscription Term. You agree to keep the RIOT Equipment insured at your own expense
against all risks of loss from any cause whatsoever, and such insurance shall cover not less than the
replacement cost of the RIOT Equipment. Proof of insurance must be sent via email to
equipment@riotinsight.com throughout the Subscription Term. If you fail to provide RIOT with such
evidence, then RIOT will have the right, but not the obligation, to charge you for insurance protecting
the RIOT Equipment at your expense.
4.9 Maintenance, Damage and Loss You shall ensure that RIOT Equipment is kept clean and securely
stored during the Subscription Term. In the event the RIOT Equipment is damaged, ordinary wear and
tear excepted, you shall pay RIOT for the cost of repair and handling. If the RIOT Equipment is lost or
damaged beyond repair, you will pay RIOT for replacement at the then-current list price of such RIOT
Equipment. Nothing herein is meant to preclude RIOT’s additional rights under this agreement.
4.10 Permitted Applications Only RIOT approved applications may be installed on RIOT Equipment
unless otherwise approved by RIOT. - MODIFICATIONS TO YOUR SUBSCRIPTION AND THIS AGREEMENT. If RIOT makes
modifications to this Agreement that are required by law or do not materially affect Use of your
Subscription, the changes take effect immediately. Other modifications (except for those affecting
the price of your Subscription – see Section 7.3 below) will take effect two (2) months after RIOT
sends notice of the modifications if you continue to Use your Subscription after the end of the
second month. Your Use of the Subscription after the two (2) month period constitutes your
acceptance of and agreement to the modifications - SUBSCRIPTION TERM. This Agreement shall begin when RIOT accepts your order for your
Subscription and continues until terminated as set forth in this Agreement. Your Subscription will
run for the initial term set forth on your order form (the “Initial Term”) and, unless otherwise stated
on your order from will thereafter continue on a month to month basis (each a “Renewal Term”)
until on of the following events occurs: (a) you terminate your Subscription as provided herein; (b)
RIOT terminates your Subscription as provided in herein; or (c) this Agreement terminates
pursuant to its terms. The date your Subscription ends is referred to herein as the “Termination
Date”. - SUBSCRIPTION FEES.
7.1 As part of the Subscription registration process, you will provide RIOT with a payment method and
payment information that is accurate and current, including your billing address and, if your
payment method is a credit, debit or other bankcard, the expiration date of such credit, debit or
other bankcard. You shall notify RIOT promptly of any changes to your payment information.
7.2 You authorize RIOT to collect your payment of Subscription Fees in advance in the applicable
currency, using the payment method and payment information you provide and that RIOT accepts.
Subscription Fees quoted do not include applicable taxes, shipping, or duties but applicable taxes
may be included in the amount RIOT charges you. Subscription Fees may include late fees or
penalties incurred because your financial institution fails to honor a check or electronic charge,
debit or transfer. Late payments will accrue interest at the higher of one and one-half percent
(11
/2%) per month or at the highest rate permitted by law. You are obligated to pay all Subscription
Fees irrespective of whether you received an invoice. Failure to meet any of your payment
obligations will be a material breach of this Agreement and allow RIOT to suspend or terminate
your Subscription.
7.3 RIOT may increase or decrease your Subscription Fees at any time. Any increase or decrease in
Subscription Fees will take effect at the commencement of your next Renewal Term. RIOT will not
increase your Subscription Fees more than twenty-five percent (25%) in any given year. If you
continue to Use your Subscription after the fee change takes effect, you will be deemed to (a)
agree to the fee change and (b) authorize RIOT to collect the new Subscription Fee amount using
your payment method. - OWNERSHIP RIGHTS.
8.1 Your right to Use the Subscription is licensed and not sold. As between you and RIOT (a) you shall
own and retain all right, title, and interest in Your Content, including your trade names, service
marks, or any other trade insignia; and (b) RIOT and its licensors shall own and retain all right,
title, and interest in and to (i) their respective trade names, service marks, or any other trade
insignia, (ii) the Service and the underlying technology, and (iii) all content, including, without
limitation, RIOT Technology, but excluding Your Content. Any right to use, transmit, reproduce,
distribute, download, or exploit RIOT Technology not expressly licensed to you in this Agreement
is strictly prohibited. All rights not expressly set forth hereunder are reserved by RIOT.
8.2 You agree that RIOT may, when necessary to maintain, upgrade, troubleshoot, and/or protect the
integrity of Your Subscription, Your Content, and the Service, access and/or download Your
Content on a limited basis and for the sole purpose of completing maintenance, upgrades,
troubleshooting, and/or protecting the integrity of Your Subscription, Your Content, and the
Service. - LIMITED WARRANTIES AND DISCLAIMERS.
9.1 Service RIOT warrants that for one hundred and eighty (180) consecutive days after RIOT
accepts your order for your Subscription (the “Service Warranty Period”), the Service, when
properly Used, shall perform substantially in accordance with the Documentation. RIOT does not
warrant or represent that your Use of the Service will be uninterrupted or error-free. If you report
to RIOT in writing within the Service Warranty Period any non-conformity between the
Documentation and the Service (a “Warranty Claim”), and if RIOT is able to replicate and verify
that such non-conformity exists, RIOT shall make commercially reasonable efforts to correct such
non-conformity and if successful, make such correction available to you at no additional cost. If
such efforts are unsuccessful and the non-conformity is material, you may terminate this
Agreement, discontinue Use of your Subscription, comply with any termination provisions imposed
on you by RIOT or a third party provider, and RIOT will ensure that you receive a refund of the
Subscription Fees you paid in the three (3) months preceding the Warranty Claim.
9.2 Customer Support. You are entitled to receive Customer Support as part of your Subscription
and if you have paid all required Subscription Fees, RIOT warrants that during your Subscription
Term, RIOT will use qualified personnel to provide Customer Support in a professional manner
consistent with industry standards.
9.3 Service Level. RIOT warrants that during your Subscription Term it will use commercially
reasonable efforts to ensure that the Service will meet the service level specified in the Service
Level Guidelines posted by RIOT at http://www.riotinsight.com/legal
9.4 Sections 9.1, 9.2 and 9.3 state your SOLE AND EXCLUSIVE REMEDIES for any breach of the
warranties contained in those Sections.
9.5 OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED IN THIS SECTION 9, RIOT
AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT
PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND
GUARANTEES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED
AND STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, CONDITIONS
OR GUARANTEES (A) OF MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR
PURPOSE, (C) OF NON-INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL
PROPERTY RIGHTS OF ANY THIRD PARTY, AND (D) ARISING FROM CUSTOM OR TRADE
URIOT OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU
ACKNOWLEDGE THAT: (I) THE UTILITY OF BUSINESS MANAGEMENT SOFTWARE
DECREASES AS TECHNOLOGY EVOLVES AND THE BUSINESS ENVIRONMENT
CHANGES, AND (II) YOU ARE FREE TO DECIDE AND ARE RESPONSIBLE FOR DECIDING
WHEN TO CEASE USING THE SOFTWARE.
9.6 Other Limitations and Requirements.
9.6.1 No employee, agent, or representative of RIOT, any reseller (including your Reseller), or any other
third party is authorized to make any warranty with respect to the Service or Subscription, except
those expressly made part of this Agreement and you may not rely on any such unauthorized
warranty. You acknowledge that you have chosen or accepted your Reseller and that such
Reseller is an independent party and not an agent of RIOT.
9.6.2 YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO: (I) ENSURE THE
ACCURACY OF YOUR CONTENT AND THE PROCESS BY WHICH IT IS PUT INTO THE
SERVICE; (II) EXAMINE AND CONFIRM RESULTS OBTAINED FROM THE SERVICE BEFORE
YOU RELY ON IT; (III) ADOPT PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND
OMISSIONS; AND (IV) RECONSTRUCT YOUR CONTENT. - EXCLUSIONS OF AND LIMITATIONS ON LIABILITY.
10.1 You acknowledge that software and services of this nature are inherently complex and may not
be free from errors, and that you have been advised to verify the work produced by the Service.
Neither RIOT nor its suppliers, or third party providers shall be liable for any special, indirect,
incidental, consequential or punitive damages resulting from any defect in the Subscription, even
if RIOT has been advised of the possibility of such damages. This means RIOT is not responsible
or liable for damages or costs incurred as a result of lost time, loss of data, loss of anticipated
profits, lost opportunity cost, or loss of Use of the Subscription, nor for damages or costs incurred
in connection with obtaining substitute subscription services or support, claims made against you
by others or similar costs. IN NO EVENT SHALL RIOT’S LIABILITY TO YOU ARISING OUT OF
OR IN CONNECTION WITH THE SERVICE, YOUR SUBSCRIPTION OR THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES
ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM. You
acknowledge and agree that this Agreement allocates risk between you and RIOT as authorized
by applicable law, and that the Subscription pricing reflects this allocation of risk and the
exclusions and limitations of liability contained in this Agreement. If any remedy hereunder is
determined to have failed of its essential purpose, all limitations of liability and exclusion of
damages set forth in this Agreement shall remain in full force and effect.
10.2 You acknowledge that unless you and RIOT agree in writing for RIOT to provide services to
implement your Subscription, that you are responsible for engaging a qualified party to provide
implementation services for you on terms you negotiate. You also acknowledge that you are
responsible for independently investigating the skills and qualifications of such party to ensure that
they provide you with the level of skill and service your business requires. You agree that RIOT
shall have no liability whatsoever for any failure associated with such implementation services,
even if the party you engage is an authorized or certified Reseller, consultant, or installer of RIOT
products or services. - INDEMNIFICATION.
11.1 You shall defend, indemnify, and hold RIOT and its Affiliates, officers, directors, employees,
Resellers, and agents harmless from any third party claim related to or arising from (a) your or a
third party’s Use of or access to your Subscription or Your Content; (b) all activities occurring
under your user ID and password; (c) any item or service sold or advertised in connection with
Your Content or information; and (d) Your Content, if it (i) contains any defamatory, libelous or
illegal material; (ii) infringes a third party’s patent, copyright, or other intellectual property or trade
secret right, or (iii) violates a third party’s right of privacy or publicity. RIOT reserves the right at its
expense to participate in the defense of such claims but shall have no obligation to do so. You
shall not settle any such claim or liability without the prior written consent of RIOT, which RIOT
shall not unreasonably withhold.
11.2 If you receive notice of any claim that your Use of the Service infringes any third party’s intellectual
property right in a patent, copyright, or trade secret (an “Indemnity Claim”), RIOT shall defend,
indemnify and hold you harmless by paying any resulting costs and damages finally awarded by a
court with respect to any such Indemnity Claim provided that you: (a) notify RIOT in writing
promptly upon becoming aware of the Indemnity Claim; (b) at RIOT’s request and expense, give
RIOT such information and assistance as is reasonable under the circumstances; and (c) give
RIOT the right to settle the Indemnity Claim in RIOT’s sole discretion and at RIOT’s expense.
11.3 This indemnification does not extend to any Indemnity Claim arising from a combination of the
Service with other elements not under RIOT’s sole control, or arising from any part of the Service
that you or a third-party modify, that incorporates specifications, designs or formulas that you
provide, or information, services, or technical support furnished by a third party. If you are
prevented from Using the Service because of an actual or claimed infringement, then at RIOT’s
option, RIOT shall promptly either obtain for you the right to continue using the affected part of the
Service, replace or modify the affected part of the Service so that it becomes non-infringing, or if
none of the foregoing alternatives are possible after RIOT exercises commercially reasonable
efforts, you may terminate your Subscription and RIOT shall ensure that you receive a refund of or
credit for any pre-paid but unused portion of the Subscription Fees you paid.
11.4 THIS SECTION 11 SETS OUT RIOT’S ENTIRE FINANCIAL LIABILITY FOR ANY INDEMNITY
CLAIM. - PRIVACY. RIOT will not actively monitor Your Content but will investigate complaints of violations
of a third party right. RIOT will cooperate with those attempting to minimize Internet or
telecommunication abuse and reserves the right to institute filters or other mechanisms for that
purpose. RIOT will cooperate with law enforcement authorities and may notify such authorities if it
suspects that you are engaged in illegal activities. For more information regarding RIOT’s
protection of your information, please consult RIOT’s Privacy Policy at http://www.riotinsight.com/legal In
its sole discretion, RIOT may change the Privacy Policy from time to time and will post notice of
the changes to the RIOT Privacy Policy website. Your use of third party Supplemental Services or
Required Third Party Services may be subject to privacy policies of those third party providers. - CONFIDENTIALITY.
13.1 RIOT shall implement commercially reasonable security measures designed to prevent the
disclosure or dissemination of Your Content and information regarding your Subscription to any
third party without your written consent and shall not use Your Content for RIOT’s own benefit or
for the benefit of any third party, except to the extent permitted by this Agreement. Notwithstanding
the foregoing, you agree that RIOT may provide Your Content to those third parties that RIOT
engages to provide services of and support for the Subscription, Required Third Party Services,
and your Supplemental Services.
13.2 You shall implement commercially reasonable security measures designed to prevent the
disclosure or dissemination of the Service, RIOT Technology, and information about your
Subscription to any third party without RIOT’s written consent, and shall not Use the Service, RIOT
Technology, or information about your Subscription for your own benefit or the benefit of any third
party, except to the extent permitted by this Agreement.
13.3 If you are or RIOT is requested pursuant to, or required by, applicable law, regulation or legal
process to make disclosures of information (“Protected Information”) otherwise prohibited by
Sections 13.1or 13.2 above, each of us will promptly notify the other (if not prohibited by law or
legal or regulatory process) so that the other may seek a protective order or other appropriate
remedy or, in the other’s sole discretion, waive compliance with the terms of this Agreement. In the
event that no such protective order or other remedy is obtained, or that the other party does not
waive compliance with the terms of this Agreement, then each of us shall furnish only that portion
of the Protected Information which it believes in good faith, after consulting with counsel, it is
legally required to disclose and will exercise all reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded the Protected Information. - TERMINATION.
14.1 This Agreement and the license granted to you will terminate automatically and without notice if
you fail to comply with any term or condition of this Agreement, including but not limited to the
payment of all Subscription Fees when due. THE SUBSCRIPTION OR SERVICE MAY CONTAIN
TECHNOLOGY THAT ALLOWS RIOT TO TERMINATE YOUR USE OF THE SUBSCRIPTION
OR SERVICE OR CONVERT YOUR ACCESS TO READ-ONLY STATUS IN THE EVENT YOU
MATERIALLY BREACH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, YOUR
FAILURE TO PAY SUBSCRIPTION FEES WHEN DUE. IF RIOT CONVERTS YOUR ACCESS
TO READ-ONLY, YOU WILL NOT BE ABLE TO ENTER NEW DATA. Upon termination or
expiration of this Agreement, you shall comply with any termination provisions imposed on you by
a third party provider.
14.2 You may terminate this Agreement if RIOT does not cure a material breach within thirty (30) days
after you provide RIOT written notice of the breach. In such event, RIOT will refund prepaid
Subscription Fees for Services RIOT has not provided.
14.3 You may terminate this Agreement at the end of your Subscription Term by providing RIOT with
your termination request, your RIOT customer number, your company name, a company contact
name and company phone number or email (your “Notice”) and returning all RIOT Equipment.
You will have access to your Content for a fee for a period of thirty (30) days after the
Termination Date. You must retrieve Your Content from the Service before, and RIOT is not
required to retain Your Content after, the expiration of such thirty (30)-day period.
14.4 RIOT may terminate this Agreement for convenience on sixty (60) days’ written notice.
14.5 RIOT shall not be liable to you or to any third party for termination of your Subscription in
accordance with this Agreement.
14.6 When this Agreement terminates your access to your Subscription will end.
14.7 Return of RIOT Equipment You are responsible for securely packaging and returning all RIOT
Equipment on Termination for any reason under this Section 14. On receipt of the RIOT
Equipment, RIOT, if applicable, will assess You any fees for damage or loss. Any RIOT Equipment
not returned within thirty (30) days will be deemed lost and replacement fees assessed.
14.8 You remain responsible for paying all Subscription Fees incurred prior to the Termination Date
and for all RIOT Equipment repair or replacement fees.
14.9 Any provision in this Agreement which when reasonably read as intended to survive the
termination of this Agreement shall survive, including without limitation, the disclaimer of
warranties, limitations of liability, and indemnification. - GENERAL TERMS.
15.1 Independent Contractors. This Agreement is not intended to nor will it be construed as creating a
joint venture, partnership or other form of business association between the parties.
15.2 Export. You shall not violate any U.S. Export Administration Regulations or end-user, end-use,
and destination restrictions issued by the United States and other governments applicable to the
Service or your Subscription. You warrant that you are not located in, not under the control of, or
not a national or resident of, any country, entity, or person designated as restricted.
15.3 Transfer and Assignment. You shall not transfer, delegate, or assign this Agreement in whole or
in part, directly or indirectly, by operation of law, merger, acquisition, or otherwise without RIOT’s
prior written consent.
15.4 Government Restricted Rights. The Subscription and Service are made available with
RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government (including its
agencies and instrumentalities) is subject to restrictions set forth in 48 CFR 52.227-19 or DFARS
252.227-7014, as applicable. RIOT is the distributor. RIOT’s address in the United States is 1212
E SHELBY ST SUITE 1 SEATTLE, WA, 98102.;
15.5 Jurisdictional Rights. This Agreement gives you specific legal rights and you may also have
other rights which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the
exclusion or limitation of implied warranties or of liability for incidental or consequential damages,
so some or all of those provisions of this Agreement may not apply to you.
15.6 Dispute Resolution, Waiver of Collective or Class Action, Choice of Law, Statute of
Limitations and Language. Any cause of action or claim arising out of or relating to this
Agreement or the breach thereof, including without limitation, the validity, enforceability or scope
of this Agreement, shall be settled by binding arbitration pursuant to this Section 15.6 and the
applicable rules of either J.A.M.S/Endispute or the National Arbitration Forum in effect at the time
the claim is filed. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. In addition, you agree that any cause of action or claim will be
arbitrated individually and that you will not consolidate or seek class treatment for any claims,
unless previously agreed to in writing by you and RIOT. This Agreement shall be governed by the
laws of the State of Delaware each without regard to the conflict of laws provisions thereof or to
the United Nations 1980 conventions on the International Sale of Goods. The parties have
expressly requested and required that this Agreement and all other related documents be drawn
up in the English language. ANY CLAIM OR CAUSE OF ACTION REGARDLESS OF FORM
MUST BE BROUGHT NO MORE THAN ONE (1) YEAR AFTER IT AROSE, OTHERWISE THE
CLAIM OR CAUSE OF ACTION SHALL BE BARRED, EXCEPT THAT THE FOREGOING
LIMITATION AND THE ARBITRATION PROVISION SHALL NOT APPLY TO THE
ENFORCEMENT BY RIOT OF YOUR PAYMENT OBLIGATIONS AND ANY OF RIOT’S
INTELLECTUAL PROPERTY RIGHTS. THIS PROVISION SHALL SURVIVE TERMINATION
AND EXPIRATION OF THIS AGREEMENT.
15.7 Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will
act as a waiver or continuing waiver of such rights. Such rights may only be waived in a writing
signed by both parties.
15.8 Audit Rights. With or without prior notice, RIOT may audit your Use of the Subscription and
Service to ensure that you comply with the terms and conditions of this Agreement. If an audit
reveals that you have underpaid fees or owe fees to RIOT, RIOT will invoice you for the
underpayment or amount due based on RIOT’s price list in effect at the time the audit is
completed.
15.9 Auto updates. Your Subscription may contain auto update technology, a feature used to provide
Maintenance as part of your Subscription. This feature cannot be disabled. This feature will: (a)
connect to RIOT or service provider computer systems over the Internet; (b) use Internet protocols
to recover standard computer information in order to determine whether Maintenance is required;
and (c) automatically download and install, or prompt you to download and/or install, current
Maintenance. By Using the Service initially, you consent to the transmission of standard computer
information and the automatic downloading and installation of Maintenance.
15.10 Force Majeure. Neither party will be in default of this Agreement if the party’s performance is
delayed or prevented for any delay, nonperformance or related damages if such delay or
nonperformance is due to causes beyond its reasonable control, including, but not limited to acts
of God, pandemic, electrical power failure, loss of communications, fire, explosion, war, action of
any governmental authority or the delay of third parties.
15.11 No Third Party Beneficiaries. This Agreement is solely for the parties’ benefit and not for the
benefit of any other person or entity, except for permitted successors and assigns.
15.12 Notices and Electronic Communications. RIOT may send any notices permitted or required
under this Agreement by e-mail, express mail or by a nationally recognized courier to your last
known address, effective upon transmission (if by email or express mail) or on receipt (if by
courier). Evidence of successful transmission shall be retained. You shall send legal notices to
RIOT at RIOT INSIGHT INC., ATTN: GENERAL COUNSEL, 1212 E SHELBY ST, SUITE 1,
SEATTLE, WA 98102 USA.
15.13 Publicity. You acknowledge that RIOT may use your name in press releases or product brochures
indicating that you are a customer of RIOT, and you agree that RIOT may use your name in such
a manner
15.14 Entire Agreement and Severability. This Agreement represents the complete and exclusive
understanding between you and RIOT regarding your Subscription, and supersedes any prior
purchase order, confirmation, advertising, representation, or other communication. If any provision
of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from and shall
not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such
severed provision shall be replaced with a similar provision that conforms to applicable law and
embodies as closely as possible the original intent of the parties