TERMS AND CONDITIONS

Please read these Terms and Conditions carefully. All contracts that Right Submission LLC (“RS”) may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions.

 

1.     Definitions

Except to the extent expressly provided otherwise, in this Agreement:

"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Customer" means the person or entity identified as the counter party to RS in the Services Order Form;

"Customer Confidential Information" means any information disclosed by the Customer to the Provider during the Term OR (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked confidential or should have been reasonably understood by RS to be confidential;

"Customer Data" means all information uploaded to the platform and hosted services by the customer;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means Accumit or other RS product, which will be made available by RS to the Company as a service via the internet in accordance with these Terms and Conditions;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights, including without limitation, copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;

"Platform" means the platform managed by RS and used by RS to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed.

 

"Services Order Form" means an online order form published by RS and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

 

 

 

2.           Term

2.1        The Agreement shall come into force upon the Effective Date of each Services Order form.

2.2        The Agreement shall continue in force indefinitely, subject to termination in accordance with each Services Order Form

2.3        Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.

2.4        Either party may terminate the Agreement after any minimum term by giving to the other party not less than 30 day written notice of termination.

3.     Hosted Services

3.1        RS shall create an Account for the Customer and shall provide to the Customer login details for that Account.

          3.2         RS hereby grants to the Customer a worldwide, non-exclusive license to use the Hosted Services by means of a Supported Web Browser during the Term.

3.3         The license granted by RS to the Customer under paragraph 3.2 is subject to the following limitations:

(a)      The Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and

(b)     the Hosted Services may only be used by the named users identified by the Customer to RS, providing that the Customer may change, add or remove a designated named user by contacting RS.

          3.4         Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the license granted by RS to the Customer under paragraph 3.2 is subject to the following prohibitions:

(a)      the Customer must not sub-license its right to access and use the Hosted Services;

(b)     the Customer must not permit any unauthorised person to access or use the Hosted Services;

          (c)      the Customer must not republish or redistribute any content or material from the Hosted Services; and

(d)     the Customer must not make any alteration to the Platform.

          3.5         The Customer shall use reasonable endevours, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an Account.

          3.8         The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

          3.9         The Customer must not use the Hosted Services:

(a)      in any way that is unlawful, illegal, fraudulent or harmful; or

(b)     in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

          3.10       For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

4.     Payments

      Payments to RS shall be governed by language of the Services Order Form.  The Customer must pay RS within thirty (30) of any invoice date or payment date in the Services Order Form. If the Customer does not pay any amount properly due to RS under the Services Order Form and these Terms and Conditions, then RS may charge the customer interest on the overdue amount at the rate of 10% per annum.  If the Customer does not pay any amount properly due to RS under the Services Order Form and these Terms and Conditions within forty five (45) days of the due date then RS may terminate any agreement, rescind any license granted in paragraph 3.2 and terminate any and all access of the Customer to the Hosted Services.

 

 

5.     Customizations

          5.1         RS and the Customer may agree that RS shall design, develop and implement a Customization or Customizations in accordance with a specification and project plan agreed in the Services Order Form or in writing by the parties.

          5.2         All Intellectual Property Rights in the Customizations shall, as between the parties, be the exclusive property of RS (unless the parties agree otherwise in writing).

          5.3         From the time and date when a Customization is first delivered or made available by RS to the Customer, the Customization shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customization shall be governed by paragraph 3.

          5.4         The Customer acknowledges that the Provider may make any Customization available to any of its other customers or any other third party at any time.

6.     Availability

      RS shall use its best efforts to maintain the availability of the Hosted Services to the Company, at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability. A Force Majeure Event; a fault or failure of the internet; or a fault or failure of the Company's computer systems or networks, shall not be considered by itself a cause for termination of any agreement.

7.     Customer Data

6.1        The customer grants to RS a limited, non-exclusive license during the Term to copy, reproduce, store, distribute, publish, export, adapt, and edit the Customer Data to the extent reasonably required for the performance of the RS obligations and the exercise of the RS's rights under this Agreement,  together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers solely to the extent reasonably required for the performance of RS's obligations and the exercise of RS’ rights under this Agreement.

6.2        The Customer warrants to RS that it has the legal right to disclose all Personal Data or Personally Identifiable Information that it does in fact disclose to RS under or in connection with these Terms and Conditions.

6.3        The Customer represents to RS that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.

    6.4         Customer must not use the hosted services to store Protected Health Information or any data that would violate HIPAA regulations.

 

8.     No assignment of Intellectual Property Rights

Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from RS to the Customer, or from the Customer to RS.

9.     Relationship of the Parties

It is understood by the parties that RS is a SaaS provider and independent contractor with respect to the customer and not an employee of the customer.

10.  Indemnification

The customer agrees to indemnify and hold RS harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) initiated by third parties (collectively “Claims”), and incurred or sustained by RS because of its performance of services for the customer, except where such Claim arises as a result of RS’s negligence, breach of this Agreement, or willful misconduct.

RS agrees to indemnify and hold the customer harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) initiated by third parties (collectively “Claims”), and incurred or sustained by customer and arising directly or indirectly as a result of any breach by RS of these Terms and Conditions, except where such Claim arises as a result of the Company Indemnitee’s negligence, gross negligence or willful misconduct.

Any and all amounts due for indemnity hereunder shall be paid promptly as indemnifiable damages or losses are actually incurred. Payments shall be made in accordance with the Indemnitee’s reasonable instructions at the time.

11.  Confidentiality

11.1      RS recognizes that the Customer has and will have products, prices, business affairs, future plans, trade secrets, process information, customer lists, technical information, product design information, Company Data, and other proprietary information (collectively, “Customer Confidential Information”) which are valuable, special and unique assets of the Customer. RS agrees that RS will not at any time or in any manner, either directly or indirectly, use any Customer Confidential Information for RS’s own benefit or for any use whatsoever, except as explicitly set forth in paragraph 11.6, or divulge, disclose or communicate in any manner any Customer Confidential Information without the prior written consent of the Company. RS will protect the Confidential Information and treat it as strictly confidential.

 

11.2      RS acknowledges that the Customer Confidential Information of the Company is a valuable, unique asset of the Customer, that ownership of Customer Confidential Information remains wholly with the Customer, and that RS has no rights to own, use, or disseminate any Customer Confidential Information other than as expressly stated in this Agreement.

 

 

11.6      Notwithstanding the foregoing paragraphs of this clause 11, RS may disclose the Customer Confidential Information to RS’ officers, employees, professional advisers, agents and subcontractors reasonably required to know such Customer Confidential Information for the sole purpose of providing the Services pursuant to an Agreement.

 

12.  Assignment

          The Customer hereby agrees that RS may assign, transfer or otherwise deal with the RS's contractual rights and obligations under these Terms and Conditions.

13.  No waivers

          13.1       No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

          13.2       No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

14.  Severability

          14.1       If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

          14.2       If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

15.  Third party rights

          15.1       The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

          15.2       The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

16.  Entire agreement

          16.1       The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

          16.2       Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

17.  Applicable Law

This Agreement shall be governed by the laws of the Commonwealth of Massachusetts.