Master Service Agreement
This Master Services Agreement (the “Agreement”) is entered into by and between REVIEW TRACKERS, INC., located at 1 North State Street, Suite 600 Chicago IL 60602 (“RT”, “we”, or “us”), and the entity agreeing to these terms (“Customer”, “Client” or “you”). If Customer executes an Order Form, this Agreement shall govern the applicable Order Form and shall, together with such Order Form, constitute the “Agreement.” If you are accepting on behalf of your employer or another entity you represent and warrant that (a) you have the legal authority to bind your employer or the applicable entity to the terms and conditions contained herein; and (b) you have read and agree to be bound by the terms and conditions of this Agreement. Customer and RT are sometimes collectively referred to in this Agreement as “Parties” and individually as “Party”.
WHEREAS, RT develops and owns online, web-based platforms which support clients in accumulating and analyzing customer feedback.
WHEREAS, Customer desires to access the Services, and RT desires to provide Customer access to the Services, including at times a desire to incorporate RT’s application programming interface into its online dashboard, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows:
“Agreement” means this Master Services Agreement, and unless the context requires otherwise, including all Order Forms and any addendums, exhibits or attachments to any of the foregoing.
“API” means the RT application programming interface as constituted and provided to Client from time to time.
“API Program Tools” means the API and all other tools, passwords, passcodes, key codes, information and the like made available to Client at RT’s discretion which are necessary for Client to access, connect to, and utilize the API and RT Content.
“Client Service” means the software application, dashboard, website or other interface that Client develops, owns or operates to interact with the API.
“Effective Date” means the effective date specified in the Order Form.
“Implementation Date” means the date in which the Order Form is executed.
“Intellectual Property Rights” means any and all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights.
“Order Form” means the executed order form entered into between RT and Customer setting forth, at a minimum, the description, term and pricing for the Services ordered by the Customer hereunder.
“Review Monitoring and Aggregation” means the online review data comprising the RT Content which is displayed to Users within the Client Service.
“RT Content” means all of the information stored in and retrieved from RT’s databases. RT Content does not include information that Client obtains independently of RT and the API.
“RT Materials” means the Services, RT Content, API, API Program Tools, the documentation, and any and all other materials provided to Customer or any User in connection with the foregoing.
“Service(s)” means the services provided by RT to Customer as set forth on the Order Form, which Parties may update from time to time by mutual, signed, written agreement.
“Terms and Conditions” shall mean those terms located at https://www.reviewtrackers.com/terms-service, which may be updated from time to time.
“User(s)” means end-users of the Client Service.
2. ACCESS AND USE OF CUSTOMER PORTAL
Customer Portal. Customer will be given access to such internet websites or mobile applications as may be offered and supported by RT from time to time (such websites or mobile applications referred to collectively as the “Portal”) for the purpose of Customer accessing such aggregated online reviews and proprietary analytics (“Reviews and Analytics”) which may be published on the Portal from time to time.
License to Use. RT grants to Customer a non-exclusive, non-transferable, non-sublicensable, worldwide license to use the Reviews and Analytics published by RT on the Portal. RT shall retain exclusive ownership of the Reviews and Analytics and all Intellectual Property Rights therein. Customer’s use of the Reviews and Analytics shall conform to all ReviewTrackers’ Terms and Conditions. The Terms and Conditions may be updated from time to time at RT’s sole and absolute discretion.
Representations and Warranties of Customer. Customer hereby represents and warrants that:
a. Customer will not use the Portal or the Reviews and Analytics for any unlawful or fraudulent purpose;
b. Customer will not publish the Reviews and Analytics in any manner such that the Reviews and Analytics would be generally available to any person other than Customer’s own clients and customers;
c. Customer will not publish the Reviews and Analytics on any internet website such that the Reviews and Analytics become indexed by Google or available through any other search engine;
d. Customer has access to all requisite technology hardware and software necessary to access and utilize the Portal;
e. Customer will protect and secure Customer’s Portal login information from unauthorized access by third parties and will be responsible for any unauthorized access occasioned by Customer’s failure to protect and secure such login information.
f. Customer will not iFrame the Portal or any other RT application within any other application without express written authorization of ReviewTrackers Inc.
3. API LICENSE AND ACCESS
This Section 3 shall only apply if the Customer is permitted to utilize RT’s API pursuant to an Order Form.
a. License Grant. If applicable, during the Term of this Agreement, RT hereby grants to Client a non-exclusive, non-transferable, non-sub-licensable, license to use the API and RT Content solely to do the following and subject to the restrictions set forth in this Agreement:
i. Enable the Client Service to interact and access RT Content for the purpose of displaying upon and incorporating into the Client Service, RT Content, but only to Users;
ii. Make limited intermediate copies of RT Content as necessary to perform an activity permitted under this Agreement; and
iii. Arrange or organize RT Content within the Client Service.
b. API Program Tools Access. RT shall provide to Client such API Program Tools as may be necessary for Client to access and integrate to the API and which may be in existence from time to time during the Term of this Agreement.
c. RT Content. Client shall limit its usage of RT Content solely for the purpose of incorporating RT Content into the Client Service in order to provide Review Monitoring and Aggregation to Users. Unless clearly separated from other data or content displayed to Users within the Client Service, RT Content shall not be commingled, combined or displayed with other data or content within the Client Service.
d. Restricted Activities. Client shall not use or access the API, API Program Tools or RT Content in any way not permitted under this Agreement, and Client shall refrain from any of the following:
i. Distribute, publish or allow access or linking to the API or RT Content from any location or source other than the Client Service;
ii. Enable or permit the disclosure of RT Content other than as authorized under this Agreement;
iii. Commercialize the RT Content other than for the purpose allowed by this Agreement;
iv. Modify, decompile, reverse engineer or otherwise alter or attempt to derive the source code of the API Program Tools, the API or the RT Content;
v. Use robots, spyders, scraping or other technology to access or use RT Content to obtain any information beyond the RT Content provided pursuant to this Agreement;
vi. Use the RT Content or the API in any way which: (a) renders the Client Service false or misleading; (b) infringes, misappropriates, or otherwise violates any third party’s Intellectual Property Rights of any kind or nature; (c) violates any legal requirement or third party privacy right; (d) is defamatory, threatening or harassing; (e) transmits to RT, any User, or any third party any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or (f) creates liability for RT of any kind or nature.
vii. Use the RT Content or the API in any way which tarnishes, disparages, dilutes or otherwise impairs RT’s reputation, brand or trade name.
viii. Conduct a performance test or load test without RT written permission.
ix. Share or disclose RT API documentation
e. Modification and Uptime. Subject to the terms and conditions of the Agreement, RT shall use commercially reasonable efforts to make the services available in accordance with the service levels set out in Exhibit A. RT may conduct maintenance on or stop providing any of the API, the API Program Tools or the RT Content at any time pursuant to the terms of Exhibit A. RT may change the method of access to the API, API Program Tools or the RT Content at any time in its sole discretion. RT reserves the right at any time to modify the API, the API Program Tools and the RT Content in its sole discretion.
a. Incorporation into Client Service and User Access. Client shall incorporate Review Monitoring and Aggregation into the Client Service on or before the Implementation Date and shall grant and provide access to such Review Monitoring and Aggregation to Client’s then-existing Users as well as all new Users who become Users following the Implementation Date.
Intellectual Property Ownership.
a. RT retains all rights, title and interest in and to the API, the API Program Tools and the RT Content, including all Intellectual Property Rights in any of the foregoing.
b. Client retains all rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Client Service, excluding the aforementioned rights in section (a) directly above owned by RT.
c. There are no implied licenses under this Agreement, and any rights not expressly granted to Client hereunder are reserved by RT or its licensors. Client agrees that it will not take any action inconsistent with RT’s ownership of the API, the API Program Tools and the RT Content.
4. FEES, DURATION, PAYMENT
All fees are as set forth in the applicable Order Form and shall be paid by Customer in U.S. dollars as set forth within the terms of the order form, unless otherwise specified in the applicable Order Form. RT reserves the right to increase the rates specified in the Order Form effective upon any Renewal Term of the Services. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on RT’s income. If Customer fails to make any payment when due, without limiting RT’s other rights and remedies: (i) RT may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse RT for all reasonable costs incurred by RT in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, RT may suspend Customer’s and its Users’ access to any portion or all of the Services until such amounts are paid in full.
5. TERM & TERMINATION
Term. The Agreement, including the Order Form, shall commence on the Effective Date and shall continue for the period of time set forth in the Order Form (the “Initial Term”). At the conclusion of the Initial Term (or any subsequent Renewal Term), the Agreement, including the Order Form, shall automatically renew for additional renewal terms for the same period of time as the Initial Term (each a “Renewal Term”), unless either Party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.” This Agreement may be terminated immediately by RT or Customer in the event of a material breach of this Agreement by the Customer or RT or violation of the Terms and Conditions by Customer, User. Customer’s obligation to pay the remainder of the fee due for the remainder of the Term shall survive any termination of this Agreement, unless Customer terminates due to a material breach of the Agreement by RT.
Effect of termination. Upon termination: (a) all rights granted to Customer under this Agreement, including Customer’s license to access and use the Services, the API, API Program Tools and the RT Content, shall immediately cease; (b) RT shall stop providing and/or performing all Services; (c) Customer shall immediately pay any fees due through the date of termination (d) each Party, shall, upon receipt of a written request from the other Party, destroy or return all Confidential Information of such other Party. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Customer to any refund.
Confidentiality. “Confidential Information” means any and all information or data of or about the disclosing Party (“Disclosing Party”), as the case may be, that is not generally known to the public and is disclosed to the other Party (“Receiving Party”) pursuant to this Agreement. Confidential Information shall include all information or data so disclosed whether tangible or intangible and whether or not delivered orally, stored, compiled or memorialized physically, electronically, graphically, photographically or in any other media. Without limiting the foregoing, the API and API Program Tools shall be deemed the Confidential Information of RT. Confidential Information shall not include:
a. information which is publicly known or known by Receiving Party prior to disclosure by Disclosing Party;
b. information which has become publicly known without fault on the part of Receiving Party;
c. information which has been independently developed by Receiving Party without reliance upon or reference to the Confidential Information; or
d. information which has been received by Receiving Party at any time from a source other than Disclosing Party lawfully having possession of and the right to disclose such information.
Nondisclosure Obligations. Each Party agrees to maintain Confidential Information received from the other in confidence and neither use nor disclose such Confidential Information, without the prior written approval of the Disclosing Party, except as required to perform its obligations under this Agreement or as required to comply with any order of a court or any applicable rule, regulation or law of any jurisdiction. In the event that a Receiving Party is required by judicial or administrative process to disclose Confidential Information of the Disclosing Party, it shall promptly notify the Disclosing Party, where legally allowed, and allow the Disclosing Party a reasonable time to oppose such process. Within the organization of each party, Confidential Information shall be disclosed only on a need-to-know basis and only to those employees or contractors of the Receiving Party who are bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall protect Confidential Information of the other by using at least the same degree of care to prevent unauthorized disclosure or use as that Party uses to protect its own confidential information of like nature (and in no event less than a reasonable degree of care).
Injunctive Relief. Each Party acknowledges and agrees that a breach of its obligations to the other Party under this Section 6 may result in irreparable and continuing damage to the other Party for which monetary damages will not be sufficient, and that such other Party will be entitled to seek injunctive relief in addition to any and all other remedies available at law or in equity.
7. INTELLECTUAL PROPERTY
Ownership & Intellectual Property. RT shall retain all rights, title and interest in and to the Services, the RT Materials, and Intellectual Property Rights therein. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, software, techniques, tools, processes and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with RT and belong exclusively to RT.
Feedback and derivative works. Customer agrees that only RT shall have the right to maintain, enhance or otherwise modify the Services. If Customer provides RT with reports of defects in the Services or proposes or suggests any changes or modifications (collectively “Feedback”), RT shall have the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into RT’s software products and/or services, including, without limitation, the Services, without any obligation to Customer. Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of RT and you hereby irrevocably assign to RT and agree to irrevocably assign to RT all of your right, title, and interest in and to all Feedback, including without limitation all Intellectual Property Rights therein.
License Restrictions. Except as expressly set forth herein, the licenses granted to Client in this Agreement do not include any right to: (a) damage, disable, or impair the Services or the network(s) connected thereto; (b) copy a Service or any part, feature, function or user interface thereof; (c) modify, reroute, create derivative works of, derive the source code of, reverse engineer, disassemble or tamper with Services, or attempt to do any of the foregoing; (d) permit direct or indirect access to or use of any Services by a third party (other than Users); (e) take any action that imposes an unreasonably or disproportionately large burden on RT’s infrastructure; (f) violate any local, state, federal or other applicable consumer privacy regulations or applicable law or violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights); (g) disable or circumvent any security features of the RT’s products or Services; (h) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (i) use, evaluate, or view, or assist in using, evaluating, or viewing, RT Content or RT Materials for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by any Services, or to compete with RT; or (j) cause or permit any third party to do any of the foregoing.
Reservation of Rights. All rights not expressly granted to Customer in this Agreement are reserved to RT. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Customer by implication, estoppel or otherwise. Customer does not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, any RT trademarks or service marks, or any other RT technology, software (including third party technology and software) or Intellectual Property Rights, except for the limited use and access rights described herein.
Disclaimer of Warranties. CLIENT ACKNOWLEDGES THAT RT HAS NOT MADE ANY REPRESENTATION OR WARRANTY TO CLIENT REGARDING THE SERVICES, THE API, THE API PROGRAM TOOLS OR THE RT CONTENT PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (1) RT DOES NOT WARRANT THAT THE SERVICES, THE API, API PROGRAM TOOLS AND RT CONTENT PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS, WILL PRODUCE THE RESULTS DESIRED BY CLIENT, WILL OPERATE UNINTERRUPTED OR WILL OPERATE IN AN ERROR-FREE MANNER; (2) RT DOES NOT WARRANT THAT ALL DEFECTS WILL BE CORRECTED OR CORRECTABLE; (3) RT DISCLAIMS ANY IMPLIED WARRANTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY WITH RESPECT TO MERCHANTABILITY, DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY, CAPACITY, OR TECHNICAL COMPATIBILITY OF THE SERVICES, THE API, API PROGRAM TOOLS AND RT CONTENT PROVIDED IN CONNECTION WITH THIS AGREEMENT, OR FITNESS OF THE SERVICES, THE API, API PROGRAM TOOLS AND RT CONTENT PROVIDED IN CONNECTION WITH THIS AGREEMENT FOR A PARTICULAR PURPOSE. RT DISCLAIMS ANY AND ALL DAMAGES RESULTING FROM ANY MATTER DISCLAIMED HEREIN.
FURTHER, RT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PORTAL OR REVIEWS AND ANALYTICS. RT DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PORTAL OR REVIEWS AND ANALYTICS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PORTAL OR REVIEWS AND ANALYTICS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS (C) THE PORTAL OR REVIEWS AND ANALYTICS WILL BE ACCURATE OR RELIABLE, CUSTOMER HEREBY RECOGNIZING THAT THE REVIEWS ARE GENERATED BY THIRD PARTIES AND RT HAS NO WAY OF VERIFYING THE ACCURACY OR COMPLETENESS OF THE REVIEWS, (D) ERRORS OR DEFECTS IN THE PORTAL OR REVIEWS AND ANALYTICS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE PORTAL OR REVIEWS AND ANALYTICS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PORTAL AND REVIEWS AND ANALYTICS ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY RT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF CUSTOMER’S USE OF THE PORTAL, REVIEWS AND ANALYTICS REMAINS SOLELY WITH CUSTOMER TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PORTAL, REVIEWS AND ANALYTICS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. RT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. RT DOES NOT GUARANTEE OR WARRANT THAT RT WILL FIND OR COMMUNICATE TO CUSTOMER EVERY EXAMPLE OR ALL EXAMPLES OF INTERNET REVIEW-BASED OR SOCIAL MEDIA CONTENT ABOUT CUSTOMER.
CUSTOMER REPRESENTS AND WARRANTS THAT: A) ALL INFORMATION YOU PROVIDE TO RT IS ACCURATE, TRUTHFUL AND THAT YOU HAVE THE LEGAL RIGHT TO SHARE SUCH INFORMATION WITH US; (B) YOU ARE AUTHORIZED TO PROVIDE US WITH ANY OF THE CUSTOMER AND/OR USER INFORMATION (INCLUDING EMAIL ADDRESSES) THAT YOU PROVIDE TO RT IN CONNECTION WITH THE SERVICES (THE ”REVIEWER INFORMATION”); (C) THAT, FOR ALL COVERED ENTITY CUSTOMERS, YOU HAVE OBTAINED THE CONSENT OF YOUR PATIENTS/CUSTOMERS TO RECEIVE EMAIL COMMUNICATIONS AT THE EMAIL ADDRESS YOU PROVIDE; AND (D) THAT RT’S POSSESSION AND/OR USE OF THE REVIEWER INFORMATION ON YOUR BEHALF AS PERMITTED IN THIS AGREEMENT IN CONNECTION WITH THE SERVICES WILL NOT VIOLATE ANY CONTRACT, STATUTE, OR REGULATION.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL RT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). RT SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY CUSTOMER, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, PORTAL, REVIEWS AND ANALYTICS, API, API PROGRAM TOOLS, RT CONTENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, PORTAL, REVIEWS AND ANALYTICS, API, API PROGRAM TOOLS, RT CONTENT, EVEN IF RT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL RT’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, WHETHER SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, INTENTIONAL CONDUCT, OR PURSUANT TO SOME OTHER THEORY INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY, REGARDLESS OF WHETHER SUCH DAMAGES ARE ASSERTED BY CLIENT OR SOME OTHER PARTY.
CLIENT AGREES TO ASSUME THE RESPONSIBILITY FOR INSURING AGAINST OR OTHERWISE BEARING THE RISK OF GREATER DAMAGES. THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT RT’S LIABILITY AND DAMAGES AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTION, CLAIM, OR PROCEEDING RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICE PROVIDED IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THESE TERMS AND CONDITIONS, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM, OR PROCEEDING, OR SUCH ACTION OR CLAIM WILL BE FOREVER BARRED. CLIENT AGREES TO USE REASONABLE EFFORTS TO MITIGATE ANY DAMAGES SUSTAINED BY CLIENT PURSUANT TO OR IN CONNECTION WITH THE USE OF OR CLIENT’S INABILITY TO USE THE SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT.
Indemnification. Customer will indemnify, defend, and hold harmless RT, its affiliates, and its and their respective directors, officers, employees, agents, successors and assigns from and against any and all loss, costs, claims, damages, expenses or liability of any kind (including reasonable attorneys’ fees), whether by reason of accident, injuries, intentional misconduct, or negligence of any kind that may result from: (1) any act or omission of Customer, its agents, representatives, employees, or Users, (2) RT’s failure to remove reviews related to our Services which contain illicit content, (3) lack of performance as it relates to rich snippets or google algorithm changes, or (4) first party feedback that is personally identifiable information which Customer elects to display.
11. AGGREGATED STATISTICS
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, RT may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between RT and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by RT. Customer acknowledges that RT may compile Aggregated Statistics based on Customer data that is inputted into the Services. Customer agrees that RT may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by RT in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Permissions and Releases. Customer agrees that RT may use Customer’s name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
Permitted Use. Our Services may not be used for or in connection with any illegal activities or any activities that we deem improper for any reason whatsoever, as determined in our sole discretion. We reserve the right to take preventative or corrective actions to protect RT and its users from such illegal or improper activities. Customer agrees to be bound by the Terms and Conditions and to ensure any Users abide by the Terms and Conditions. Client will not, and has no right or authority to, resell any Services and will need to execute a separate reseller agreement in order to obtain any such right.
Service Modifications. RT continues to innovate and develop its Services and reserves the right from time-to-time to make modifications to the Services and/or to particular components of the Services to improve the product and/or to address market changes, including, but not limited to, adjustments to the particular third party review, social media and/or business listing sites the Services monitor and/or manage. RT will use commercially reasonable efforts to notify Customer of any material modifications to its Services.
Compliance. At all times, Customer and its directors, officers, employees, agents, successors, assigns, and Users shall comply with and be bound to the Terms and Conditions, and all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement. Customer shall indemnify RT for any costs, expenses, injury and damage caused to RT as a result of Customer’s failure to comply with the Terms and Conditions, or any applicable laws, rules, ordinances, decrees or regulations. Customer agrees that Customer and Users will not use the Services to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material.
Modification. RT may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. The amended and modified terms will be posted at www.reviewtrackers.com/MSA and Customer’s continued use of the Services following the effective date of any such amendment may be relied upon by RT as Customer’s consent to any such amendment. RT will not be required to notify Customer of said amendments or modifications. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
Competitive or Similar Materials. In no event will RT be precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and distributing, materials, content, websites, software or any other materials of any kind or nature which are competitive with the Client Service or other products or services provided by Client.
Governing Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Illinois, excluding principles of choice of law, and will be binding upon the parties hereto in the United States and worldwide. All disputes with respect to this Agreement will be brought and heard either in the Illinois state courts located in Cook County, Illinois, or the federal district court for the Northern District of Illinois located in Chicago, Illinois. The Parties to this Agreement each consent to the exclusive in personam jurisdiction and venue of such courts. The Parties agree that service of process upon them in any such action may be made if delivered in person, by courier service, by telegram, by facsimile or by first class mail, and will be deemed effectively given upon receipt.
Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
Entire Agreement. This Agreement, including any Order Forms, contains the entire agreement of the parties and supersedes any prior verbal or written agreements, understandings, representations, proposals and other communications with respect to the subject matter herein. In the event of any conflict or inconsistency between this Agreement and the Terms and Conditions, the more stringent provision in favor of RT, as determined in RT’s sole discretion, shall take precedence and control.
Survival Provisions. Provisions contained in this Agreement that are expressed or by their sense and context are intended to survive the termination of this Agreement shall so survive the termination, including, but not limited to accrued rights to payments, confidentiality obligations, warranty disclaimers, indemnifications, and limitations of liability.
Successors and Assigns; Assignment. This Agreement will bind the Parties and their successors and permitted assigns. Customer shall not assign this Agreement without the prior written consent of RT. Any assignment attempted without the written consent of RT will be void. RT shall have the right to assign this Agreement in its sole discretion.
Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. RT will not be liable for lack of performance as it relates to rich snippets or search engine algorithm changes.
Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
No Waiver. No action or inaction taken pursuant to this Agreement shall be deemed to constitute a waiver of compliance with any covenant, condition or agreement contained herein. The waiver by any Party hereto of any breach or modification of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or modification.
Notice. RT may give notice by means of a general notice on the Portal, electronic mail to Customer’s email address on record in RT’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in RT’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to RT (such notice shall be deemed given when received by RT) at any time by any of the following: letter sent by confirmed email to RT at the following email: [email protected]; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to RT at the following address: 1 North State Street, Suite 600 Chicago IL 60602.
Uptime Service Level Agreement
Subject to the terms and conditions of the Agreement, RT shall use commercially reasonable efforts to provide and maintain 99.9% uptime of the site on a 24 hours per day/7 days per week/365 days per year basis, excluding downtime of the site or service for scheduled maintenance. RT shall use reasonable efforts to provide 12 hour prior electronic notice to Customer with respect to any such scheduled downtime. Customers can sign up for real time notifications of any uptime related issues at http://status.reviewtrackers.com
Web Support Service Level Agreement
Customer can receive instant answers 24/7 from our detailed help and product documentation at http://support.reviewtrackers.com.
Phone Support Service Level Agreement *only available with certain packages
Monday – Friday 8am – 5pm CST via:
Email: [email protected]
Phone: (866) 854-7670
API Service Level Agreement
RT performs scheduled maintenance and will use commercially reasonable efforts to limit such maintenance to off-peak periods. Customers can elect to receive email notifications on scheduled maintenance times or issues that may arise via http://status.reviewtrackers.com. Our status page automatically monitors key components of our system and updates our customers of issues in real time.
1. Rate Limits are enforced using the API directly and should not affect usage of RT Client facing applications
- We will offer the ability within the API to determine either how many requests remain before the limit is reached within your time frame or when you can next retry your request.
- We hold the right to throttle calls based on CPU time used and total time. If these become frequent, we will address them as part of our Problem Classification process.
- Is based off the User that is making the requests or the IP address
2. Pagination – We support a maximum of 100 per page when requesting via the API
3. Unauthenticated Requests – POST /Auth Limited to 10 requests / 60 seconds
4. Authenticated Requests – Limited to 25 requests / 60 seconds
We will use commercially reasonable efforts to maintain availability of our API based on the following targets
- 99.9% Uptime (“three nines”)
- Availability is defined as ((TMM – TMU) * 100) / TMM, Total minutes in a month (TMM), Total minutes in a month that are Unavailable (TMU)
Scheduled Maintenance Window
- 10 PM CST – 5AM CST on Wednesdays
- We may perform emergency maintenance outside of the scheduled maintenance window.
- We will use commercially reasonable efforts to avoid an impact to a customer and to give reasonable notice
- Scheduled Maintenance (including maintenance performed during the Scheduled Maintenance Window set forth above)
- Unavailability caused by the Customer or its users
- Unavailability based on network unavailability (i.e. internet is unavailable by the client)
- Unavailability caused by software / hardware of Customer, our providers (e.g. AWS outage or widespread DNS issues), or other third parties
- Power outages or internet failures
- Events outside of our control
Problems and Response Times
Problem Classification – We will determine the severity of a problem as follows:
- Urgent – API is unresponsive or performance degradation renders application unusable (2x API SLA) for critical business functionality, and no work-around is currently available
- High – A major piece of API functionality is unusable or suffers limited functionality that affects a large portion of users
- Medium – A loss of function or resource that impacts a small number of users or non-core functionality
- Low – A minor bug that does not impact API functionality or has a readily available workaround
Target Response Times – We will use commercially reasonable efforts to respond to each problem as follows:
- Urgent – 12 hours for resolution or mitigation steps from the time the Engineering ticket is created
- High – 24 hours for resolution or mitigation steps from the time the Engineering ticket is created
- Medium – 14 business days from the time the Engineering ticket is created
- Low – Will be prioritized on a per case basis for future releases
We may change or amend this Exhibit A Service Level Agreement at any time in our sole discretion.