PLEASE REVIEW THE TERMNS AND CONDITIONS OF THIS SOFTWARE AS A SERVICE AGREEMENT BEFORE USING COMPANY’S SOFTWARE OR SERVICES. BY ACCESSING OR USING COMPANY’S SOFTWARE OR SERVICES OFFERING, YOU (THE “ CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE AS A SERVICE AGREEMENT. BY ACCEPTING THIS SOFTWARE AS A SERVICE AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO ALL OF THESE TERMS, AND YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS SOFTWARE AS A SERVICE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE AS A SERVICE AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
EXCEPT AS OTHERWISE AGREED IN WRITING BY THE PARTIES, THESE TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE TO ANY SALES ORDER OR PURCHASE ORDER (“SALES ORDER”) SIGNED AND EXECUTED BY AND BETWEEN YOU AND US.
“Company”, “us” and “our” refers to Rose Rocket, Inc., a Delaware corporation, in connection with US-based Customers and to 2490408 Ontario Inc., DBA Rose Rocket for Canadian Customers.
1. SAAS SERVICES.
- 1.1 Provision of Services. Subject to the terms and conditions of this Agreement, including the payment of applicable fees, Company will provide Customer with a non-assignable, non-exclusive right to access and use the services indicated in the Sales Order(s) (the “Services”) during the Term of this Agreement. Unless otherwise agreed in a written agreement signed by both parties, Customer agrees that its purchase of a subscription to the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Company regarding future functionality or features.
- 1.2 Internet Connectivity & Hardware. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
- 1.3 Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or user names with unauthorized users.
- 1.4 Company retains the right to modify or discontinue redundant Service features without notice. Furthermore, Company reserves the right to introduce a major release of the Services, potentially encompassing significant enhancements, subject to an extra charge beyond the Agreement fees ("Major Release"). Customers possess the option to pay these additional fees to access new functionality or persist with the present functionality specified in the Sales Order. If a Customer accepts a Major Release along with associated fees, written notification of the fees will precede their addition to applicable charges upon the Customer's written acceptance. Company exclusively holds authority over the development roadmap of the Services, with complete discretion in decisions regarding ongoing development, enhancements, and modifications. Absent an express agreement within a separate written document signed by Company, the Company may decline Customer's proposals for custom development or modifications.
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company in writing or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services. Customer represents, covenants, and warrants that Customer will use the Services in accordance with the foregoing restrictions and only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. Support & Maintenance Services.
- Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice during the hours of 9:00 a.m. through 7:00 p.m. Eastern time, with exclusion of holidays (“Support Hours”). Outside of regular Support Hours, non-emergency support will be charged to Customer at Company’s then-current rates. Support resulting from hardware/network problems and/or issues associated with third party products or services will be billed to Customer at Company’s then-current hourly rates.
4. Implementation & Professional Services
- Company will carry out the implementation services to the extent explicitly specified any Sales Order. Any extra professional services will be rendered according to a separate Sales Order or a distinct written agreement executed by both parties. This Agreement does not encompass on-site services, unless otherwise established in a mutually signed written agreement between the parties. Should Customer seek on-site services, these will be provided at Company's prevailing standard rates. If services beyond the scope of this Agreement are requested by Customer, they will be delivered at Company's prevailing standard rates, which Customer agrees to pay. All travel, meals, and lodging expenses associated with Company will be invoiced separately by Company as they are incurred, encompassing Company personnel travel time invoiced at Company's prevailing standard rates.
5. Integration with Third-Party Vendors.
- The Services offer interfaces to certain third-party vendor systems. Where such interfaces are provided, Company will connect them based on the agreement outlined in a Sales Order or as instructed by Customer in writing or via the Services (each, an “Integration”). Customer agrees to facilitate communication between Company and any of Customer’s third-party vendors involved in the Integrations as reasonably required by Company to implement such Integrations. Customer recognizes and accepts its exclusive responsibility to secure, or ensure its third-party vendor secures, all necessary licenses required for these Integrations, unless such Integrations are otherwise purchased by Customer pursuant to a Sales Order. Customer hereby acknowledges and agrees that: (i) Customer is instructing Company to make Customer Data (as defined below) available to each Integration; (ii) by instructing Company to connect the Services to an Integration, Customer expressly consents to Company providing Customer Data to such vendors as necessary to facilitate each Integration; and (iii) Customer acknowledges that internet communications carry inherent risks and, accordingly, once Customer Data leaves Company's environment or is transmitted to a third-party vendor, Company shall have no responsibility for the integrity or security of that Customer Data.
6. Customer data
- Customer will have sole and exclusive responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all non-public data provided by Customer to Company to enable the provision of, or inputted into, the Services (“Customer Data”). Customer will not send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that is harmful to children, violates third party privacy or intellectual property rights, includes malicious code, or that will interfere with the integrity of the Services. Customer grants to Company a royalty-free, non-transferable, non-exclusive license for the term of this Agreement to use Customer Data to the extent necessary to perform the Services.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. If the Receiving Party is compelled by law to disclose Proprietary Information of the Disclosing Party, it shall, to the extent legally permissible, provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
8. Proprietary Rights.
- Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Customer grants to Company a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to incorporate any suggestions, enhancement requests, recommendations, or feedback regarding the operation or functionality of the Services that may be provided by Customer, its employees, contractors, or agents (“Customer Input”). However, Company is not obliged to include Customer Input in the Services, and Customer is under no obligation to offer Customer Input.
9. Payment Terms.
- Customer will pay Company the then applicable fees described in the Sales Order for the Services and implementation services in accordance with the terms therein (the “Fees”). Customer may increase its usage of the Services (including the number of Customer’s employees using the Services) at any time. If Customer’s use of the Services exceeds the Service Capacity set forth on the Sales Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. The Company shall calculate the actual fees and applicable taxes due and will either add such underpayment to the next monthly invoice or, at the Company’s discretion, separately invoice Customer. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email or provided via the Services). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared to be eligible to receive an adjustment or credit. Any such inquiries should be directed to Company’s customer support department. In the event Customer raises a dispute concerning a specific invoice, any undisputed charges on that invoice will remain payable. Company and Customer commit to making reasonable efforts to settle invoice disputes within thirty (30) days from Company's receipt of Customer's notice. If it is confirmed that Company rightly invoiced a disputed and withheld amount, a late fee may be applicable and paid on the contested sum. If Customer qualifies for a credit, it will be applied to the subsequent invoice. Regardless of any contrary provision in this Agreement, all fees remitted by Customer to Company pursuant to this Agreement and any Sales Order are non-refundable. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company upon receipt of the invoice. Unpaid undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.
10. Term and Termination
- 10.1 Term. Subject to earlier termination as provided below, this Agreement is for the greater of one (1) year or the Initial Service Term as specified in the Sales Order and shall commence on the Renewal & Access Date specified in the Sales Order. This Agreement shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”) at then current rates, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- 10.2 Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
11. Warranty; Disclaimer.
- Company warrants that the Services will conform in all material respects to the Sales Order and the product manual associated with the Services. As Customer's sole remedy for any breach of the foregoing warranty, if Customer brings to Company’s attention any incidence of non-conformance, Company will use reasonable efforts to correct the error. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail or via the Services of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.
12. LIMITATION OF LIABILITY.
- EXCEPT IN CONNECTION WITH CUSTOMER’S VIOLATION OF SECTION 2 (RESTRICTIONS), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF COMPANY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR INDEMNIFICATION OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR TO BE PAID TO COMPANY BY CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. ALL REFERENCES TO A PARTY IN THIS PARAGAPH AND THE APPLICABILITY OF THE LIMITAITONS SET OUT HEREIN INCLUDE SUCH PARTY’S SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AGENTS AND EMPLOYEES. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this paragraph form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement, including pricing, would be substantially different.
13. Governing Law
- Subject to (a) the availability of injunctive relief for a party to protect its intellectual property rights or its Proprietary Information and (b) Section 14 (Dispute Resolution), each party agrees that applicable law governing the interpretation of this Agreement, its existence, or any lawsuit arising from it, as well as the courts having jurisdiction, is dependant on the country of incorporation or organization of Customer, and will be determined as set out in the table immediately below. The parties agree to exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.
|Customer Country of Incorporation or Organization:||Governing Law||Courts Having Jurisdiction|
|The United States of America, Mexico or a Country in Central or South America or the Caribbean||The laws of the State of New York and the federal laws of the United States applicable in that state.||New York City, New York|
|Canada||The laws of the Province of Ontario and the laws of Canada applicable in that province.||Toronto, Ontario|
14. Dispute Resolution.
- In the event of any dispute, controversy, or claim between the parties, each party will appoint a senior management representative to seek resolution. These designated representatives will engage in good-faith negotiations for a duration of thirty (30) days to settle the dispute. If no resolution is reached during this thirty-day period, either party may escalate the matter to binding arbitration. In such case, Customer will select an arbitrator from a list of three (3) arbitrators provided by Company. Each arbitrator will possess expertise in both legal and business aspects of the software industry. The parties mutually agree to equally share the arbitrator's fees, and each party will be responsible for its respective costs, including legal expenses, related to the arbitration, unless the arbitrator decides otherwise based on circumstances. The arbitration proceedings will be conducted in English and will adhere to arbitration rules, taking place at the location specified in the table immediately below, contingent upon Customer's country of incorporation or organization. For certainty, the foregoing provision shall not limit the ability of a party to seek injunctive relief.
|Licensee Country of Incorporation or Organization:|| Applicable Arbitration Rules:|| Location of Arbitration:|
|The United States of America, Mexico or a Country in Central or South America or the Caribbean|| Commercial Arbitration Rules of the American Arbitration Association|| New York City, New York|
|Canada|| Canadian Arbitration Association||Toronto, Ontario|
- 15.1 Export Restrictions. Customer may not remove or export from the United States or Canada to allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- 15.2 Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.
- 15.3 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- 15.4 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
- 15.5 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
- 15.6 Waivers. Any waivers and modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein. The waiver by either party of a breach of any provision of this Agreement in one instance shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
- 15.7 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
- 15.8 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- 15.9 Publicity. To the extent mutually agreed by the parties, (i) the parties shall issue at least one press release within 90 days of the Effective Date, and (ii) Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. Despite the foregoing, neither party may disclose the specific terms of this Agreement, except as required by applicable law.
- 15.10 Logo Usage in Promotional and Marketing Materials. Subject to any contrary stipulations in the pertinent Sales Order, Customer hereby grants to Company authorization to incorporate Customer's trademark, logo, and trade name ("Branding") into Company's promotional and marketing materials. This authorization, however, does not confer any proprietary interest in the Branding to Company. Customer reserves the right to revoke this authorization by furnishing written notice to Company with a notice period of thirty (30) days. Upon termination, Company is obliged to cease future use of the Branding.
- 15.11 Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts (any of which may be delivered by electronic transmission), each of which shall constitute an original, and all of which taken together shall constitute one and the same instrument, and shall include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law.
- 15.12 Updates to Terms & Conditions. Company reserves the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least thirty (30) days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in Company’s sole discretion. By continuing to access or use the Services after any revisions become effective, Customer agree to be bound by the revised terms and conditions of the Agreement. If Customer does not agree to the new terms, Customer is no longer authorized to use the Services. In the event of a material change of terms, Customer may terminate the Agreement by giving Company written notice within thirty (30) days of Company’s notice of the change of terms and, in such case, Company shall refund to Customer any pre-paid fees that are applicable to the period after such termination.
LAST UPDATED: September 1, 2023.