RIVA INTERNATIONAL, INC.
Riva Cloud Terms and Conditions of Use
The parties acknowledge that these RIVA CLOUD TERMS AND CONDITIONS OF USE (“Terms and Conditions”) and related Appendices form the licence agreement (“Agreement”) between Riva International, Inc. (“Licensor”) and the customer (“Licensee”). These Terms and Conditions shall govern the relationship between the parties from the earliest start date in a related executed on-line purchase or order form (“Order Form”) to the latest expiration date of the initial or subsequently executed Order Form.
Licensee acknowledges it is planning to implement and test or has successfully implemented and tested Riva Cloud (“Riva“) during a trial or proof of concept period and/or wishes to move forward with Riva. These Terms and Conditions govern access to and use of the Licensor web sites (“Web Sites“), located at www.rivacrmintegration.com and www.rivasync.com or www.rivacloud.com, which locations may change from time to time, and the Riva and related software located therein (collectively, the “Software” or “Web Services“), by Licensee and its authorized users (“Users“) for the duration of the licensing term (“Term”) as identified on a related Order Form.
If you have entered into a separate paid Enterprise agreement with us for specific services, then the terms of that agreement controls if it conflicts with these Terms.
If you have not entered into a separate paid agreement with us for specific services, then by using the Software, clicking on the “I Agree” Button or Checkbox, completing the registration process, and/or browsing the Web Sites, using the Web Services or downloading any Software, you represent that (1) you have read, understand, and agree to be bound by the Terms and Conditions, (2) you are of legal age to form a binding contract with Riva, and (3) you have the authority to enter into the Terms and Conditions personally or on behalf of the company or other organization you have named as the user, and to bind that entity to these Terms and Conditions. In the event you are agreeing to these Terms and Conditions on behalf of a company or organization, “you” and “your” will refer to the entity you are representing.
Your use of, and participation in, certain Web Services or Software may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms and Conditions or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms and Conditions are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Web Service or Software. The Terms and Conditions and any applicable Supplemental Terms are referred to herein as the “Terms.”
1. DEFINITIONS. All capitalized terms used in these Terms and Conditions have the meanings given to them unless otherwise defined herein.
2. ACCESS TO THE WEB SERVICES AND TERM OF LICENSE Licensor grants to Licensee during the Term set out on an on-line or related Order Form, a non-exclusive and non-transferable right and license to use the Web Services for internal use only, according to these Terms and Conditions. The Term may be automatically renewed for one-month or one-year terms as per the terms on the Order Form and/or subsequent Licensee renewals making reference to the Order Form and modifying the Term and/or number of Users set forth therein. The Web Services will be disabled immediately upon completion of the Term if payment for the next term has not been received within 30 days of Licensee’s receipt of invoice. 15 days after the Web Services have been disabled, without notifying the Users, and at its sole discretion, Licensor may choose to delete the Users’ account information.
3. PAYMENT TERMS. Monthly subscription payment will be made by way of pre-payment by authorized credit card. Yearly or non-monthly subscription payment will be made by authorized credit card (for orders under $2,000.00), by electronic funds transfer (additional bank charges, transfer fees and all other related expenses are the responsibility of Licensee) or by cheque upon receipt of an approved purchase order for full payment for the term detailed in the Order Form. During the Term, Licensee has the right to purchase additional licenses at the same price as the initial order. The price for additional accounts will be pro-rated to be co-terminus with the previous licenses.
4. USER IDs AND USE OF WEB SERVICES Access to the Web Sites will be controlled through the use of unique user IDs created and assigned by the Licensee for each User authorized to access the Web Sites (“User IDs“), the use of which shall be accessible by Licensor for monitoring and maintaining access control of the Web Services. Licensee shall be solely responsible for any and all unauthorized, or improper use of the Web Services and for all activity, synchronisation or transactions performed using their User IDs, including the use of User ID by personnel or agents who are no longer engaged by the Licensee. In addition, Users agree that they shall not:
- use the Web Services for any illegal purpose;
- sell, assign, sub-license, rent, broadcast or re-transmit the Web Services, in whole or in part, including without limitation, using the Web Services in connection with any service bureau activities except as permitted herein; or
- copy, reverse engineer, decompile, disassemble, modify, adapt or translate the Software or the Web Services, or create a derivative work of, or otherwise attempt to discover any source code of the Software or communicate the same to any other person or otherwise reduce or attempt to reduce the Software to human perceivable form.
5. COMPUTER AND INTERNET CONNECTION Users shall be responsible for supplying, at their own expense, all computer and telecommunication equipment required to enable them to access the Web Services, including a supported Internet browser, supported versions of which shall change, from time to time, at Licensor’s sole discretion. The list of supported browsers, which will be updated from time to time, is available at the following link: http://kb.omni-ts.com/entry/492/#supported-web-browsers
6. THIRD PARTY SOFTWARE Users shall be responsible for downloading from the Internet and updating at their own risk and expense, any and all third-party software (for example, versions of supported Internet browsers) – as identified above that may be required from time to time to enable them to access the Web Services. Users shall be responsible for complying with all terms and conditions and licenses regarding such third-party software.
7. OWNERSHIP OF AND RESPONSIBILITY FOR USE, CONTROL AND SECURITY OF DATA Licensee acknowledges that the Web Services are intended to facilitate integration between two systems using data provided by Users and that Users, not Licensor, control the input of this data and associated information. Licensor is not responsible for the accuracy, meaning, completeness or legality of any data input into or results as synchronized using the Web Services. Licensor agrees to take such reasonable precautions against loss of or damage to information maintained in Users’ account as is standard for providers of services of a similar nature to the Web Services. In no way shall Licensor be responsible for cleaning and/or resetting Licensee data that has been updated by the Software unless the parties agree in writing pursuant to a Professional Services Agreement based on the information in Appendix 3. Licensor understands and agrees that Licensee is the sole owner of all data that is synchronised through the Web Services or otherwise provided by Users (“Licensee Data”), and that Licensor shall have no right or interest with respect thereto. Licensor understands that the Licensee Data is confidential and may be proprietary and otherwise protected by law, and Licensor agrees not to disclose the Licensee Data to any third party or use the Licensee Data for any purpose other than the services specifically set forth in these Terms and Conditions. Licensor shall maintain appropriate security for the Licensee Data as per industry best practices.
8. SUPPORT AND MAINTENANCE Licensor shall support and maintain the Web Services in accordance with the terms and conditions set out in the attached Appendix 2.
9. TERMINATION This Agreement may be terminated by either party without cause with thirty (30) days written notice or terminated immediately without notice if the other party fails to comply with any term, condition or provision of these Terms and Conditions, and such breach is not cured within thirty (30) days of receiving written notice of such breach.
10. LIMITED WARRANTIES, LIABILITIES AND CONFIDENTIALITY:
- Limited Warranty: Other than the service level warranties set out in Appendix 2, LICENSOR DOES NOT WARRANT THAT THE WEB SERVICES WILL BE AVAILABLE AT ALL TIMES, but does warrant that it will use all reasonable commercial efforts to resolve (whether by correction or reasonable work around), in a timely manner, any defects in the Software that come to its attention, and that it will use all reasonable commercial efforts to maintain availability of the Web Services. LICENSOR DOES NOT WARRANT THAT INTERNET ACCESS TO THE WEB SERVICES WILL BE AVAILABLE AT ALL TIMES, AND ASSUMES NO RESPONSIBILITY FOR USERS’ FAILURE TO ACCESS THE WEB SERVICES AS A RESULT OF PROBLEMS WITH USERS’ ABILITY TO ACCESS THE INTERNET.
- Confidentiality: Licensor shall at all times hold all Licensee data processed under this Agreement in strictest confidence using at least the same degree of care as it uses to safeguard its own information of a highly confidential nature. Licensor shall not use, copy or divulge data processed under the Agreement to any third party except those that are legally empowered to access or to whom the Licensee wishes to give access to after notifying Licensor in writing. Any such permitted disclosures shall in no way affect the ownership of such data. Licensor shall, on termination of this Agreement for any reason (and notwithstanding any claim of whatever nature it may have against the Licensee), immediately cease use of and deliver to the Licensee all tangible materials relating to the data processed under the Agreement, including all copies of all relevant documents whether in paper or electronic form in the possession of Licensee.
- Third-party software: If any third party software is incorporated or embedded in the Software, Licensor represents and warrants that it has all rights and licenses with respect to the third party software necessary to license the software on the terms provided in the license agreement.
- Right to license: Licensor warrants that it is the owner of and has the right to license the Software and all documentation associated therewith and that there exists no actual or threatened suit by any third-party based on an alleged violation of such third party’s rights with respect to the Software or such documentation.
- Malicious Code: Licensor warrants that use of the Software will not expose Users to any Malicious Code which is defined as (i) any undisclosed program routine, device or other feature or hidden file, including, without limitation, a time bomb, backdoors, virus, software lock, security protection procedures, trojan horse, drop-dead device, worm, disabling device, malicious logic or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm the Software or any hardware, software, data or other programs of Users, or (ii) any transmitting or activating computer program, any communication feature or tool which enables Licensor to collect information regarding Users’ activities or data, or any hardware-limiting, software-limiting, or services-limiting function (including, but not limited to, any key, node lock, time-out or other similar functions), whether implemented by electronic or other means.
- “As Is” and “As Available” Use: LICENSOR WARRANTS THAT THE SOFTWARE WILL PERFORM THE FUNCTIONS SET OUT IN APPENDIX 1. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE WEB SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS OR WARRANTIES NOT SPECIFICALLY SET OUT HEREIN. LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTIES THAT THE WEB SERVICES ARE ERROR FREE, THAT THEY WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF USERS, OR THE ACCURACY OF THE RESULTS OF THE CALCULATIONS, OR THAT THEY CONFORM TO ANY STATUTE, LAW OR REGULATION OF ANY FEDERAL, PROVINCIAL OR STATE REGULATORY AUTHORITY HAVING JURISDICTION OVER ANY USERS. LICENSOR SPECIFICALLY DOES NOT WARRANT ANY THIRD PARTY SOFTWARE PROVIDED BY USERS AND USED IN CONNECTION WITH THE WEB SERVICES OR SOFTWARE.
- Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR EXCLUDES FOR ITSELF AND ITS SUPPLIERS ANY LIABILITY IN EXCESS OF THE AMOUNT PAID FOR THE WEB SERVICES FOR THE CURRENT TERM PRORATED FOR THE NUMBER OF DAYS REMAINING IN THE TERM AFTER THE DATE OF THE LOSS (THE “COMPENSATION AMOUNT”), HOWSOEVER CAUSED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
- IN NO EVENT SHALL LICENSOR BE LIABLE TO USERS’ FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS OR INVESTMENT OR THE LIKE, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OF OTHER FINANCIAL LOSS OR PERSONAL INJURY, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED (INCLUDING NEGLIGENCE), RELATING TO USERS’ USE OF THE WEB SERVICES INCLUDING UNAUTHORIZED ACCESS AND USE OF USER’S DATA BY ANY PERSON OR PERSONS, THE PERFORMANCE, FAILURE OR INTERRUPTION OF THE WEB SERVICES, EVEN IF THE USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN THE EVENT ANY EXCLUSION, LIMITATION OR OTHER PROVISION CONTAINED IN THESE TERMS & CONDITIONS OF USE SHALL BE HELD TO BE INVALID FOR ANY REASON AND LICENSOR BECOMES LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGE, SUCH LIABILITY IS LIMITED TO THE COMPENSATION AMOUNT AND NO MORE.
- This article 10 shall survive for three (3) years the expiry or termination of these Terms and Conditions.
- Use of Licensee’s’ Names and Logos: Licensee agrees that Licensor may use the Licensee’s name and/or logo(s) to identify the Licensee as a customer of Licensor on the Licensor Web Sites, and as part of a general list of Licensor’s customers for use and reference in Licensor corporate, promotional and marketing literature. Additionally, Licensor agrees that it will request and must receive approval from Licensee prior to issuing a press release or otherwise describing the Licensee’s intended utilization and the benefits the Licensee expects to receive from use of the Web Services. The content of any press release will be subject to the Licensee’s prior approval, which can be unreasonably withheld.
- Governing Law: If the Licensee’s principal place of business is located or registered in the United States of America, these Terms and Conditions shall be governed by the laws of the State of California and the laws of the United States of America applicable therein, and the parties do hereby irrevocably submit and attorn to the jurisdiction of the courts of the State of California for all matters arising out of or in connection with these Terms and Conditions. For Licensees whose principal place of business is not located or registered in the United States of America, these Terms and Conditions shall be governed by the laws of the Province of Alberta and the laws of Canada applicable therein, and the parties do hereby irrevocably submit and attorn to the jurisdiction of the courts of the Province of Alberta for all matters arising out of or in connection with this Agreement.
- Entire Agreement: These Terms and Conditions and any and all Appendices or Schedules attached thereto, constitute the entire agreement between the parties in relation to the subject matter hereof and supercede and replace any and all prior agreements, written or oral, between them regarding same. In the event of a conflict between these Terms and Conditions, the Order Form, or any appendix or schedule attached hereto, the terms of these Terms and Conditions shall prevail.
- Assignment: Licensee may not assign these Terms and Conditions or any of the rights granted herein without the prior written consent of Licensor, which consent shall not be unreasonable withheld or delayed.
- Counterparts: This Agreement may be executed in more than one counterparts, and may be delivered by facsimile, e-mail or other electronic means. An executed copy of this Agreement delivered by facsimile, e-mail or other electronic means shall for all purposes be considered an original document and each executed counterpart shall be considered as the original.
- Relationship of Parties: The relationship between the parties shall at all times be that of independent contractors. No provision of this Agreement is intended to, or shall be construed, to render one party an employee, servant or partner of the other.
12. TAXES AND IMPORT DUTIES
- Licensor is a Canadian-based company and, for Canada-based companies, will charge and remit appropriate taxes to the appropriate tax authorities. For non-Canada-based customers, fees and charges under this Agreement are exclusive of any local, city, county, provincial, state, federal, import or other sales or goods and services taxes. For Licensees with billing addresses in countries, states, provinces or other jurisdictions where Licensor is not a resident for tax collection purposes, including the United States of America, Mexico, South America, Europe and others, Licensee is responsible for self assessing and submitting all such applicable taxes (including city, county, state, federal or other sales or VAT for licenses and services as appropriate for the tax jurisdiction(s) in which Licensee resides) directly to the appropriate tax authorities.
- For Canada, the United States and Mexico, Licensor represents and warrants that pursuant to the North American Free Trade Agreement between Canada, the United States and Mexico (“NAFTA”), the price and the amount to be received by Licensor are free of any import duties, import taxes or other import charges. Licensor and Licensee agree to process and obtain the benefits to which the parties are or may be entitled according to NAFTA.
13. CHANGES TO THIS AGREEMENT Licensor may change the terms and conditions of this Agreement from time to time. The most current version of these Terms will be posted on the Web Sites. When changes are made, Riva will make a new copy of the Terms available at the Web Sites and any new Supplemental Terms will be made available from within, or through, the affected Web Service on the Web Sites or within the Software. Riva will notify you through the Web Service and/or by email to the email address associated with your account, or upon delivery of electronic mail notice to you. Notices will be considered given and effective on the date sent to your registered electronic mail address. Such changes will become binding on you on the day immediately following the date the notice is sent to you. We may also inform you of updates to the Terms in our blogs or articles. We may require you to provide consent to the updated Terms in a specified manner before further use of the Software is permitted. If you do not agree to the modifications, your only recourse is to discontinue use of the Web Services. The modified Agreement supersedes all previously agree-to electronic and written license agreements governing the Web Services and Software. You agree that you are solely responsible for (i) making sure that your registered email account is current and functional, (ii) checking your registered electronic mail on a regular basis, and (iii) making sure that Licensor communications are not blocked or rendered undeliverable by you, your device, any software installed on your device, your Internet service provider or for any other reason, and (iv) review the Terms when accessing the Web Sites or Web Services.
14. CONFLICTING PROVISIONS AND ORDER OF PRECEDENCE The provisions of this Agreement shall take precedence over any conflicting provision in any pre-printed terms and conditions contained on the reverse of any physical or electronic Purchase Order issued by Licensee, on Web Sites or elsewhere in connection with the licensing of the Software or Web Services. The provisions of the Agreement shall take precedence over any shrink-wrap, click-wrap, browse-wrap or similar licence which is made applicable by acceptance on the internet or by incorporation in the Web Services, packaging, Licensor’s proposal, or other similar means.
RIVA synchronization functions are set out in the standard documentation (print or electronic media) as available on the web sites identified below, web sites which may change from time to time, in respect of the Software, Releases, or Enhancements, and containing descriptive information, as the case may be, regarding functionality, defects, corrections, installation, configuration, operating and maintenance instructions:
Riva web site: www.rivacrmintegration.com
Web Services web sites: www.rivasync.com and www.rivacloud.com
Riva Cloud Knowledge Base: http://kb.omni-ts.com/78/
SERVICE LEVEL AGREEMENT (“SLA”)
1. Service Level For Support Services
- Riva is licensed based on a monthly or an annual subscription model. Software maintenance, software upgrades and free technical support are included in the subscription licence fee.
- Free (as defined below) telephone and email support (including tier-one, tier-two and tier-three support) are provided for all customers Monday to Friday between the hours of 9:00 a.m. to 5:00 p.m., Mountain Time, UTC -6 (17:00 to 1:00 Central European Time, UTC +2), excluding Alberta General and Optional holidays as listed at the following link: http://work.alberta.ca/employment-standards/general-holidays.html
- Critical, tier-three support requests that fall outside standard times are charged on a per-incident, per-hour rate. A pre-approved credit card or specific purchase order must be provided to receive support outside standard support hours.
2. Definition of Support Services
- Free technical support includes access to the Web Sites, Knowledge Base, and email and telephone support to troubleshoot and resolve problems caused by bugs or other reasons Riva is not performing as designed.
- Free technical support does NOT include planning, design, consulting, installation, training, configuration, best practice reviews, customisation, implementation services or trouble shooting problems caused by configuration errors made by Licensee. These professional services are provided under the current Time and Materials Charges.
- Free technical support does NOT include problem solving related to an incident where Licensor was not responsible for the configuration through a related Statement of Work for professional services.
- Licensor will use reasonable commercial efforts to substantially perform to the response time commitments for Incident Reporting as set out in Schedule A to Appendix 3.
3. Initiating Support Incident
A Support Incident request shall be initiated by completing the information on the “Contact Us” form available after logging into the related Riva account or by submitting an email to firstname.lastname@example.org with specific details regarding the status of last successful sync, start of sync problem, nature of problem (as identified by the categories identified in Schedule A below), recent changes to the CRM or email system and any additional information that would provide assistance to the support team. Licensee can choose to follow up by email or by phone to provide additional information to help expedite resolution of the Support Incident.
Schedule A to Appendix 2
SUPPORT PRIORITY CODES AND RESPONSE TIMES
|Priority Level||System State||Support Call-back||Fix Expectation||Fix Method|
|P1||Software causing invalid data to by synchronized to/or from the CRM and/or causing data corruption||Same business day||Emergency fix for specific customer as soon as practicable||Specific configuration changes or patch to be applied|
|P2||Major functions of Software not available for all users||By end of second business day||Emergency fix available for all customers on a priority basis||Packaged fix|
|P3||Major functions of Software not available for some users||By end of third business day||Sub release available for all customers, typically in 1 to 3 months||Service pack|
|P4||Minor Software functions not fully available||By end of fourth business day||Next release, typically twice per year||New release|
|P5||Enhancement or documentation issue with Software||By end of next business week||Possible in future releases||New release|
Warranty on Network Uptime
Licensor-provided Web Services are hosted on a cloud-based commercial service provider. Licensor warrants that its network uptime will be 99%, with all major routing devices within its network being reachable from the global Internet 99% of the time during the Term. This warranty does not apply in the event of the following downtime situations, which the parties agree are either necessary for the proper maintenance of the Web Services or beyond the reasonable control of Licensor, and which will not be eligible for SLA credits:
- Scheduled network, hardware and software maintenance and updates for Riva are from 7:00 p.m. to 10:00 p.m. Mountain Time each Friday. will take reasonable commercial steps to minimize and avoid downtime during this maintenance period.
- Malicious Attacks – if a third party not associated with Licensor initiates a “Denial of Service” or other form of disabling attack against our network or services, Licensor, will take all reasonable commercial steps to stop the attack, but cannot guarantee a resolution time.
In the event that Licensor does not meet this SLA, Licensee will become eligible to request compensation for downtime. If Licensor is directly responsible for causing the downtime, Licensee will receive a credit for 2 times the actual amount of downtime. This means that if your server is unreachable for 1 hour outside of the regularly scheduled maintenance times and beyond the 1% allowed, the Licensee will receive 2 hours of credit. If Licensor is not directly responsible for causing the downtime, Licensee will not receive a credit for downtime.
All requests for compensation must be received within 5 business days of the incident in question. The amount of compensation shall not exceed the cost of one month’s subscription.