Version Date: June 1, 2017
This agreement detailing Ryft’s Cloud Terms and Conditions (this “Agreement”) governs your access to and use of Ryft Cloud Software, including any and all bug fixes, updates, upgrades, new releases and related applications (the “Software”) as made available via an e-commerce or cloud computing services platform (the “Cloud Platform,” with the operator of the Cloud Platform being the “Cloud Provider”), and is between Ryft Systems, Inc. (“Ryft”) and you and the entity you represent (collectively, “you” or “your”). BY ORDERING, ACCESSING AND/OR USING ANY PART OF THE SOFTWARE, YOU EXPRESSLY AGREE TO BE BOUND BY ALL THE TERMS AND REQUIREMENTS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND REQUIREMENTS OF THIS AGREEMENT, DO NOT ORDER, ACCESS OR USE THE SOFTWARE. If you are acting on behalf of an entity (e.g., your employer), you hereby represent that you are authorized to bind that entity to this Agreement.
1. Software Use and Limitations
a. Generally. You may access and use the Software in accordance with this Agreement. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your access and use of the Software.
b. Grant. Subject to your compliance with the terms and conditions of this Agreement and the applicable Cloud Provider’s terms and conditions, Ryft grants you a limited, nonexclusive, nontransferable right to access and use the Software during the period of time for which you have paid for such access and use (the “Order Term”), for the purposes described in Ryft’s documentation for the Software, which is accessible via the Cloud Platform and/or via Ryft’s website and made available to you under this Agreement (the “Documentation”).
c. Acknowledgement. Notwithstanding anything to the contrary, access to and use of the Software is subject to a limited-term license as described in the Cloud Platform listing that provides pricing and other ordering and use information about the Software (the “Ryft Marketplace Listing”) and this Agreement. The Software is not sold or purchased, and any references to a “sale” or “purchase” are to the limited-term rights expressly granted in this Agreement.
d. Responsibilities and Limitations. You are responsible for secure connectivity to and secure use of the Cloud Platform. You are responsible for population, maintenance, loss prevention, and backup of your data. Ryft is not responsible for these functions nor for any aspect of the Cloud Platform including, without limitation: its availability, reliability, security, or privacy; the functionality of its infrastructure; or your ability to access your data via the infrastructure.
2. Restrictions. You will not yourself or through anyone else:
a. access or use the Software or Cloud Platform in a way intended to avoid incurring fees or exceeding any limitation defined in the Ryft Marketplace Listing; for example, you will not use the Software on a trial basis for more than one trial period except with written permission from an authorized Ryft representative;
b. sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Software or any confidential and proprietary information of Ryft that you may be exposed to or provided with by virtue of your order, access, and/or use of the Software or this Agreement, including but not limited to information designated as confidential in writing and information which ought to be in good faith considered confidential (Ryft’s “Confidential Information”);
c. decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Software or Ryft’s Confidential Information, in whole or in part;
d. allow access to, use of, provide, divulge or make available the Software or Ryft’s Confidential Information to any individual or entity other than your employees and independent contractors who are bound by this Agreement and have a need for such access or use;
e. copy the Software, the Documentation or any of Ryft’s Confidential Information, or write or develop any derivative software or any other software program based upon the Ryft Software, Documentation or Confidential Information;
f. modify, adapt, translate or otherwise make any changes to the Software or any part thereof;
g. use any name, mark or designation of Ryft, its affiliates or licensors, or their respective products or services, unless expressly permitted herein or by Ryft in writing;
h. disclose or publish, without Ryft’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Software; or
i. otherwise access or use the Software except as expressly permitted herein.
3. Support. Ryft will make reasonable efforts to provide support for the Software as described in the Ryft Marketplace Listing (“Support”).
4. Fees and Taxes
a. You agree to pay the Cloud Provider, which is authorized to invoice and collect fees and taxes on Ryft’s behalf, for your access to or use of the Software plus any applicable taxes, in accordance with the Ryft Marketplace Listing and this Agreement. Late payment of any fees will bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). You agree to provide the Cloud Provider, and authorize the Cloud Provider to share with Ryft as needed, all information required to process a Ryft Software order, including all information required for calculation of applicable taxes. You agree that Ryft is permitted to request and receive from the Cloud Provider metrics related to your ordering, access, and use of Ryft Software.
b. Ryft Software orders are noncancellable, and fees paid in association with such orders are nonrefundable, unless expressly provided otherwise.
c. Under no circumstances do the fees stated in Ryft Marketplace Listings include Cloud Provider fees. You are solely responsible for any Cloud Provider fees associated with your access to or use of the Software, in accordance with the Cloud Provider’s fee schedules and terms. If you access the Software on a free trial basis, you will not be charged for access to or use of the Software during that trial but you will be responsible for paying any Cloud Provider fees that apply. In no event will Ryft provide or be liable for any refund of the fees you pay for access to or use of the Cloud Platform or Cloud Provider services; any such refunds will occur solely at the Cloud Provider’s discretion and be paid solely by the Cloud Provider.
d. Except where expressly stated otherwise, all fees described in Ryft Marketplace Listings are exclusive of any and all taxes, duties, or similar charges imposed by any government or any of its agencies or instrumentalities. You will pay or reimburse Ryft for all U.S. and non-U.S. federal, state, dominion, provincial or local sales, use, value added, withholding, excise, or other taxes, fees or duties required by law in association with your Ryft Software order (other than taxes on the U.S. net income of Ryft).
5. NO WARRANTY; DISCLAIMER. YOU ACKNOWLEDGE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, SUPPORT AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. RYFT, ITS AFFILIATES, RESELLERS AND LICENSORS HEREBY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE, SUPPORT AND DOCUMENTATION. RYFT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SUPPORT OR DOCUMENTATION OR ANY OTHER MATERIALS PROVIDED BY RYFT WILL BE ERROR-FREE OR PERFORM IN AN UNINTERRUPTED MANNER, OR THAT ERRORS WILL BE CORRECTED IN THE SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS.
6. CLOUD PLATFORM AND PROVIDERS. RYFT WILL HAVE NO LIABILITY FOR THE CLOUD PLATFORM, OR FOR THE PRODUCTS, SERVICES, OR OTHER OFFERINGS OF THE CLOUD PROVIDER, ITS AFFILIATES, OR OTHER THIRD PARTIES. SIMILARLY, THE CLOUD PROVIDER WILL HAVE NO LIABILITY TO YOU UNDER THIS AGREEMENT FOR RYFT SOFTWARE, SUPPORT OR DOCUMENTATION. You acknowledge that this Agreement is between you and Ryft and not with the Cloud Provider, and Ryft is solely responsible for the Software and related Support pursuant to this Agreement.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL RYFT OR ITS AFFILIATES, RESELLERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, GOODWILL, USE OR DATA; DAMAGE TO SYSTEMS OR EQUIPMENT; BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE, SUPPORT, DOCUMENTATION OR ANY OTHER MATERIALS, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR A BREACH OF THIS AGREEMENT BY RYFT WILL BE TO CEASE ACCESS TO AND USE OF THE SOFTWARE, SUPPORT, DOCUMENTATION AND OTHER MATERIALS. RYFT AND ITS AFFILIATES, RESELLERS AND LICENSORS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO ACCESS OR USE THE SOFTWARE, SUPPORT, DOCUMENTATION, CLOUD PLATFORM OR OTHER MATERIALS, INCLUDING AS A RESULT OF ANY (1) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF, OR ACCESS TO, THE SOFTWARE OR CLOUD PLATFORM, (2) DISCONTINUATION OF, OR MODIFICATION TO, ANY OR ALL OF THE SOFTWARE OR CLOUD PLATFORM, OR (3) ANY DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE OR CLOUD PLATFORM FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, SOFTWARE FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF, OR ACCESS TO, THE SOFTWARE OR CLOUD PLATFORM; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE, ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, RYFT’S AND ITS AFFILIATES’, RESELLERS’, AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY FOR THE SOFTWARE OR ORDER THAT GAVE RISE TO THE LIABILITY DURING THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THIS DISCLAIMER OF LIABILITY WILL APPLY TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY OR OTHERWISE. The provision above allocates the risks and the fees reflect such allocation of risk.
8. Third Parties
a. Ryft’s licensors are third-party beneficiaries to this Agreement. The Ryft Software may contain third-party software, and all requirements and restrictions relating to the Software apply to such third-party software, unless expressly stated otherwise. Some third-party software may be subject to notice requirements and/or additional terms and conditions as may be further described in the Software, in the Documentation, and/or on Ryft’s website. Any required terms shall be incorporated herein by this reference. Any required notices shall be posted on Ryft’s website at https://www.ryft.com/legal/third-party-open-source-licenses.
b. Certain portions of the Software may include code which is subject to “open source” or “free software” licenses (“OSS”), a list of which is available on Ryft’s website and/or in the Documentation. The OSS is not subject to the Software license or restrictions in this Agreement, except for Sections 5, 6, 7, and 8(b). Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for the OSS, including any rights to copy, modify, or distribute the OSS under the applicable license. If Ryft makes modifications to such OSS and if the applicable OSS license requires that such modifications be made available and Ryft does not already publish such modifications via the applicable OSS community, then Ryft will make its modifications available.
9. Indemnification. You will indemnify and hold harmless Ryft and its affiliates, resellers, and licensors, and all of their officers, directors, successors and assigns from and against any action, suit or proceeding arising from or relating to your breach of this Agreement or your data or content processed by the Software, including any infringing, illegal, or malicious data or content.
a. Ownership. Ryft retains sole and exclusive ownership of the Software and all intellectual property rights in, to and/or embodied in or associated with the Software and Documentation, and all copies and derivative works thereof (whether developed by Ryft, you or a third party). You may not remove any proprietary markings relating to the Software included by Ryft or its third-party licensors.
b. Feedback You hereby assign to Ryft all rights in any comments, suggestions or other feedback that you choose to provide concerning the functionality or performance of the Software (the “Feedback”), and agree that Ryft will own all right, title, and interest in and to any such Feedback. Ryft will have no obligation to act upon the Feedback, but at its sole discretion may use the Feedback free of charge without obtaining your consent.
c. Confidentiality. You will protect Ryft’s Confidential Information from unauthorized dissemination and use with the same degree of care that you use to protect your own non-public and confidential information, but in no event less than a commercially reasonable degree of care. You will not use Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Information will not be considered Confidential Information to the extent, but only to the extent, that you can establish that such information (i) is or becomes generally known or available to the public through no fault of you; (ii) was in your possession before receipt from Ryft; (iii) is lawfully obtained from a third party who has the right to make such disclosure; or (iv) has been independently developed by you without use of or reference to any of Ryft’s Confidential Information.
11. Communication. You consent to being contacted by Ryft for payment processing, tax calculation, support, marketing, or promotional purposes, via the email address(es) associated with your Cloud Provider account. You hereby authorize the Cloud Provider to provide Ryft your email address(es) if needed for these purposes.
12. Term; Termination; Suspension
a. Term. This Agreement will take effect on the date you first order the Software and will remain in force for the Order Term, provided you are not in default under this Agreement or Ryft has not terminated the Software order and/or this Agreement. You will cease use of the Software at the end of the Order Term.
b. Termination. You may terminate at any time by ceasing to access or use the Software. Ryft may terminate at any time upon 30 days’ written notice to you. Ryft may, by written notice to you, terminate effective immediately if you are in material breach of your obligations hereunder. Sections 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 15 will survive expiration or any termination for as long as necessary to permit their full discharge. On and after the effective date of expiration or termination for any reason, as applicable, all of your rights with respect to the Software, Support, Documentation and other materials granted under this Agreement will immediately cease. No later than 30 days after the date of expiration, termination or discontinuance for any reason whatsoever, you will destroy the Documentation and any other materials directly or indirectly provided by Ryft, any of Ryft’s Confidential Information in your possession or control, and all copies of any of the foregoing in any medium.
c. Suspension. Ryft may suspend your right to the Software (in whole or in part) at any time if Ryft determines that your access to or use of the Software (i) creates or contributes to a security risk, (ii) may adversely impact the Software, the Cloud Platform, or any third party, (iii) may subject Ryft, its affiliates, its resellers, its licensors, or any third party to liability, or (iv) may be fraudulent, or (v) you are in breach of this Agreement. To the extent reasonably practical, Ryft will provide you notice of such suspension and may terminate under Section 12(b) if such events or circumstances are not promptly resolved to Ryft’s satisfaction. You also acknowledge that Cloud Provider terms and conditions or policies may also provide Cloud Providers the right to suspend and/or terminate your Cloud Platform rights, which will prevent you from accessing and using the Software. If Ryft is terminating or suspending your access and rights to the Software solely for Ryft’s convenience and without reasonable cause, then Ryft will provide you an equitable pro-rata refund for the period in which you pre-paid for rights to the Software but did not have the opportunity to access or use the Software. In all other cases, you will not be entitled to any refund from Ryft.
13. Export Restrictions. You agree that you will not access the Software from any country, nor allow the Software to be accessed or used by or for any person or entity, subject to U.S. export restrictions. You agree not to access the Software from any country against which the U.S. has embargoes or has restricted the export of goods or services, which currently include but are not necessarily limited to Cuba, Iran, North Korea, Sudan and Syria, or by any national of any such country, wherever located, who intends to access the Software from such country. You agree not to allow access or use of the Software by or for (i) any person or entity whom you know or have reason to suspect will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (ii) any person or entity who has been prohibited from participating in U.S. export transactions by any agency or instrumentality of the U.S. government. Under Section 764.3 of the Export Administration Regulations (EAR), you can be subject to fine, imprisonment, or other administrative sanction for willful violation of any provision of the Export Administration Act (EAA), the EAR, or any order, license, or authorization issued thereunder.
14. U.S. Government Use. The Software and Documentation are each a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. government end users rights relating to the Software and Documentation are limited to those rights set forth in this Agreement.
a. Revisions to Terms. The Terms OF this AGREEMENT are subject to change by RYFT in its sole discretion at any time. When changes are made, Ryft will make a new copy of the Agreement available on its website at https://www.ryft.com/legal/cloud-terms-and-conditions . Ryft will also update the version date at the top of the document. Any changes will be effective immediately for new customers and, for existing customers, thirty (30) days after the updated Agreement is posted on Ryft’s website. If you do not agree to the updated Agreement, stop accessing and using the Software. Otherwise, your continued access to or use of the Software constitutes your acceptance of the updated Agreement, inclusive of any changes.
b. Notices. Ryft may provide any notice to you under this Agreement by sending a message to the email address associated with your Cloud Provider account. It is your responsibility to keep your email address current with the Cloud Provider. You hereby authorize the Cloud Provider to provide Ryft your email address if needed for this purpose. Notices will be provided in English. You will be deemed to have received any email sent to the email address associated with your Cloud Provider account when Ryft sends the email, whether or not you actually receive the email. Notices to Ryft must be sent in English to: “7362 Calhoun Place, Rockville MD, 20855, Attention: Legal Notice” by overnight delivery service or registered mail, and are deemed received the day of delivery.
c. Assignment. The rights granted hereunder to you may not be assigned, by operation of law or otherwise, or transferred to any third party (including your affiliates and other entities, organizations or departments related to you) without the prior written consent of Ryft. Any attempted assignment in violation hereof will be null and void and a material breach of this Agreement.
d. Governing Law and Forum. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts of law’s provisions thereto, and you and Ryft agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Fairfax, Virginia. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
e. Severability. If any part of this Agreement is found illegal, void or unenforceable, it will not affect the validity of the balance of the Agreement, which will remain valid and enforceable according to its terms, and the Agreement shall be deemed amended to the extent necessary to replace such part with an alternative consistent with the original intent to the maximum extent permissible under applicable law.
f. Entire Agreement. This is the complete and exclusive statement of the agreement between you and Ryft relating to the subject matter of this Agreement.
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