Version Date: June 1, 2017
These Terms apply to Ryft’s provision of, and Customer’s use of, certain (i) Ryft servers and other Ryft-branded hardware (collectively, “Hardware”), (ii) the software and firmware loaded on that Hardware and any updates to that software or firmware (collectively “Software”), and (iii) related maintenance and support, all as made available on a subscription basis during the period indicated under the applicable Orders (or one year from shipment if not otherwise specified). These Terms are incorporated by reference into all quotes and Orders for subscriptions to the Hardware and Software (collectively, the “Ryft ONE”), whether from Ryft or its authorized resellers or distributors (“Resellers”).
This is a binding agreement between Ryft and you (the “Customer”). Each of Ryft and Customer may be referred to individually as a “Party” and collectively as the “Parties.” These Terms may NOT be altered, supplemented or amended by any other document unless the new document is signed by both Ryft and Customer.
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, INCLUDING AN ARBITRATION PROVISION AS WELL AS OTHER LIMITATIONS AND EXCLUSIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT PLACE AN ORDER.
SECTION 1. SUBSCRIPTION
1.1 Quotes and Orders. Customer may receive quote(s) and/or order subscriptions through Ryft or its authorized Resellers. Customer acknowledges that no provision in any Customer purchase order or other document will be deemed to modify, add to, or supersede any provision of these Terms, unless expressly signed by an authorized Ryft executive and by Customer. Customer also acknowledges that Resellers are not authorized to bind or commit Ryft to any new or revised terms, conditions, warranties, or other provisions.
1.2 Hardware. Subject to the terms and conditions of this Agreement, Ryft will provide to Customer the quantity of Ryft ONEs specified in the applicable quotes or Orders authorized by Ryft, solely for use by Customer during the period of time specified in the Order (or one year from shipment if not otherwise specified) and any renewals or extensions thereto (the “Subscription Period”). As between the Parties, Ryft shall retain full ownership of and title to Ryft ONE and all Intellectual Property Rights therein. Customer shall: (i) ensure that Ryft ONE is maintained in good working condition; and (ii) not assign, pledge, transfer, encumber, or grant any security interest in Ryft ONE to any third party in any manner whatsoever, nor attempt to do any of the foregoing. While in Customer’s possession, Customer hereby assumes and will bear all risk of damage, loss, theft, or destruction of Ryft ONE. If Ryft ONE is damaged, Customer will notify Ryft and Ryft will repair it at Customer’s cost so that it is returned to good working order, condition, and repair. If Ryft ONE is lost, stolen, destroyed, or damaged beyond repair, Customer will pay to Ryft the full list price for the purchase of Ryft ONE as if it were new. Within five (5) business days of the termination or expiration of the Subscription Period, Customer will return all applicable Ryft ONEs to Ryft. Customer shall: (a) return Ryft ONE in the same condition as when it was first delivered to Customer, except for reasonable wear and tear; (b) ship Ryft ONE FOB Destination to Ryft’s designated site using the original packing materials; (c) be responsible for all freight and handling charges; and (d) insure Ryft ONE for full list price, bearing the risk of loss until delivery to Ryft. If Customer fails to deliver any Ryft ONE as set forth in this Section 1.2, Customer shall be invoiced for and shall pay to Ryft the full list price for the purchase of such Ryft ONE as if it were new.
1.3 License Grant. Subject to the terms and conditions of this Agreement, Ryft grants to Customer a limited non-exclusive, non-transferable, non-sublicenseable license during the Subscription Period to use the Software on the Hardware located at the Site (defined below in Section 1.5), solely as part of Ryft ONE and not on a standalone basis, in accordance with the documentation provided by Ryft to Customer relating to Ryft ONE (the “Documentation”). Customer may make a single copy of the Software for backup or archival purposes.
1.4 Restrictions. Customer acknowledges that Ryft ONE and its structure, organization, and source code constitute valuable trade secrets of Ryft and its licensors. Customer agrees that it will not (and will not authorize or permit any employee or third party to): (i) reproduce, modify, alter, distribute, publish, rent, lease, sublicense or assign, disclose, transfer or make available to any third party any portion of the Hardware or Software or Documentation, in any form; (ii) reverse engineer, decompile, or disassemble any portion of the Hardware or Software, or otherwise attempt to decrypt, extract or derive source code for the Software, any parts thereof, or any algorithms or data structures embodied within; (iii) use the Hardware, Software, or Documentation to build a similar or competitive product or service; (iv) publish or disclose to any third party any evaluation, performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Hardware or Software or the use thereof, except as may be authorized by Ryft in writing; (v) use the Hardware or Software for purposes beyond the scope set forth in the Documentation; (vi) use the Software with Hardware not supplied by Ryft; or (vii) otherwise use or copy the Hardware or Software except as expressly allowed under this Agreement.
1.5 Site Access. The “Site” means the location where Ryft ONE will be installed and where Customer is authorized to use Ryft ONE, as specified in the Order. The Site may be changed upon notice by Customer to Ryft to any other U.S. address. Customer will ensure Ryft has access to the Site as reasonably necessary to perform its obligations hereunder and validate Customer’s compliance with this Agreement. If the Site is a third-party colocation facility, Customer will ensure Ryft has all necessary consents, permissions, and authorizations to perform its obligations and exercise its rights under this Agreement.
SECTION 2. DELIVERY; TITLE; INSPECTION/ACCEPTANCE
2.1 Delivery Date. In connection with quotes and Orders, Ryft or Reseller will establish a target shipping date as close as practicable to Customer’s requested date, subject to Ryft’s and/or Reseller’s available inventory and then-current lead time requirements as communicated to Customer. Ryft and Reseller shall not be liable for any damage or penalty arising from delay in delivery or installation, or from failure to give notice of any such delay.
2.2 Risk of Loss. All shipments are FOB Origin. Customer bears all risk of loss or damage to Ryft ONE following shipment to Customer.
2.3 Inspection and Acceptance. Except as expressly provided otherwise in these Terms, Ryft ONE is deemed accepted upon receipt, and Ryft has a “no cancellation” and “no refund” policy. Customer shall have the right to inspect Ryft ONE, and to reject any Ryft ONE which does not materially conform to the Documentation, by providing Ryft written notice of such non-conformity within ten (10) days of receipt. Ryft will thereafter repair, replace, or refund the purchase price for such Ryft ONE timely rejected, as determined solely by Ryft.
SECTION 3. OWNERSHIP
3.1 Proprietary Rights. “Intellectual Property Rights” means all copyrights, trade secret rights, patents, patent applications, trademark rights, moral rights, contract rights, and other proprietary rights. As between the Parties, all Hardware, Software and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of Ryft and its suppliers. All rights not expressly granted to Customer in this Agreement are reserved by Ryft and its suppliers. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Ryft or its suppliers on the Hardware, Software, or Documentation.
3.2 Third Party and Open Source Software. The Software may include certain third party software components that Ryft may not be able to sublicense to Customer for the full useful life of the Hardware. Any such third party software will be identified in the Additional Terms accompanying this Agreement, together with any additional or alternative licensing terms and/or restrictions associated with the third party software. If any such third party software sublicenses terminate or expire, Ryft will use commercially reasonable efforts to (i) notify Customer of such circumstances using Customer’s address on file with Ryft; (ii) provide Customer a new release or update to the Software that replaces or adjusts for the terminated third party software; or (iii) refer Customer to potential replacement software products that Customer can directly license from such third parties. Additionally, 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 accompanying the Hardware or Software, as necessary. The OSS is not subject to the foregoing Software license or restrictions in Section 1 or other Terms, except for Sections 3.2, 7.3, and 7.4. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in these Terms limits Customer’s rights under, or grants Customer 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.
3.3 Feedback. Customer may, at Customer’s sole discretion, provide comments, suggestions, ideas and other feedback to Ryft regarding the use, operation and functionality of Ryft ONE or any element thereof (“Feedback”). Such Feedback may include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features and suggestions for improvement. Should Customer elect to provide Feedback to Ryft, Customer hereby assigns to Ryft all rights in the Feedback and agrees that Ryft shall have the right to use such Feedback and related information in any manner it deems appropriate, worldwide, without obtaining Customer’s (or any third party’s) consent. Ryft is not under any obligation to use or respond to any Feedback, or to make any payments to Customer or any third party in connection with the Feedback.
SECTION 4. MAINTENANCE AND SUPPORT
4.1 Software Maintenance. From time to time Ryft may, in its sole discretion, develop updated versions of the Software which implement bug fixes, add features or functions, or produce improvements with respect to the utility and efficiency of the Software, but which do not constitute an offering that is marketed or sold by Ryft as a separate product and/or service (“Updates”). Some Updates may be released to all customers eligible for Software maintenance (“Standard Updates”); others may be released only to designated customers (“Specialty Updates”). During the Subscription Period, Ryft will make any published Standard Updates available to Customer as and if available, provided that Customer is in compliance with its obligations under this Agreement. Customer will promptly install all Updates made available to it. For clarity, Updates do not include any updated or new version of any Hardware.
4.2 Support Services. During the Subscription Period, Ryft will provide to Customer reasonable telephone and/or online support during its then-current support hours to assist Customer with identifying and resolving problems relating to Ryft ONE, and will use commercially reasonable efforts to correct any reproducible errors that cause Ryft ONE, when used as permitted under this Agreement and in accordance with the Documentation, to operate at material variance from the specifications in the Documentation. Customer acknowledges and agrees that such support is subject to Customer’s installation of published Updates to maintain currency with Ryft’s most recent Software release, and Customer’s reasonable cooperation with Ryft’s efforts to diagnose, reproduce and correct any problems and errors, including providing Ryft with remote or other requested access to Ryft ONE. Customer acknowledges and agrees that Ryft may access Ryft ONE remotely solely for the purposes of monitoring system performance and verifying Customer’s compliance with the restrictions and limitations hereunder.
SECTION 5. PRICING; PAYMENT
5.1 Fees. In consideration for the Ryft ONE Subscription, Customer agrees to pay to Ryft (or designated Reseller) the applicable fees set forth in the quote or Order for the initial Subscription Period (or list price if no other fee is indicated) and the fees determined under Section 9.1 for renewal or extension periods, plus applicable shipping, handling, taxes, and duties (the “Fees”). The Fees will be invoiced on or after the first day of the Subscription Period (and any extension or renewal thereto). All Fees will be due and payable in accordance with the Order’s payment terms (or thirty (30) days after the date of invoice if not otherwise stated in the Order). All Fees are non-refundable and are not contingent on any additional services or product to be provided. All payments shall be made in United States Dollars.
5.2 Past Due Amounts. If Customer fails to make payment within 30 days of the due date of any invoice, Ryft and/or its Resellers may suspend their future delivery and performance obligations and Customer’s license and other rights, unless Customer promptly makes payment within ten (10) days written notice. Interest will also accrue on past due amounts at the rate of 1.5% per month or the maximum rate permissible under applicable law.
SECTION 6. CONFIDENTIALITY
6.1 Confidential Information. “Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, for purposes of this Agreement, Ryft ONE and its Documentation will be deemed Confidential Information of Ryft.
6.2 Obligations. During the Subscription Period, each Party will have access to certain Confidential Information of the other. Each Party agrees: (i) not to disclose the Confidential Information of the other to anyone except its employees, contractors and advisors (“Representatives”) on a strict need-to-know basis and subject to a written duty of confidence; (ii) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (iii) to use commercially reasonable efforts to protect the confidentiality of the other Party’s Confidential Information. This Section will not apply to Confidential Information that: (a) is or becomes publicly available through no fault of the recipient; (b) is already in the recipient’s possession at the time of its disclosure without any duty of confidence; or (c) is independently developed by the recipient without use of the disclosing Party’s Confidential Information. Each Party may disclose Confidential Information to the extent required: (1) by securities laws; (2) to comply with a court or governmental order, or to comply with applicable law; or (3) to establish or preserve a party’s rights under this Agreement. Each Party will be responsible for the acts and omissions of its Representatives related to any breach of this Section.
SECTION 7. WARRANTY AND LIABILITY
7.1 Limited Warranty. Ryft warrants that each Ryft ONE unit will operate in substantial conformance with the Documentation throughout the Subscription Period. If a Ryft ONE unit does not conform with the above warranty, Ryft will repair or replace the defective components of the Ryft ONE unit at its sole discretion. Repair may occur through maintenance and support, remote Updates to the Software, and/or Customer’s installation of Software Updates or replacement components. Replacements will be subject to Ryft’s RMA processes set forth on Ryft’s website or as otherwise provided by Ryft. If the Ryft ONE unit subject to warranty cannot be repaired or replaced within a commercially reasonable period of time after notice by Customer to Ryft, Customer may return the specifically non-conforming Ryft ONE unit for a pro-rata refund of the Fees pre-paid for the then-current Subscription Period, less a reasonable allowance for any prior use thereof. This Section 7.1 sets forth Ryft’s sole obligation and Customer’s sole remedy for a breach of this warranty.
7.2 Limitations. The warranties in Section 7.1 above shall not apply to: (i) use of Ryft ONE or any component thereof other than according to the terms of this Agreement or the Documentation; (ii) modification, maintenance, or repair of Ryft ONE by Customer or any third party, except as expressly permitted in writing by Ryft; (iii) any combination or integration of Ryft ONE with hardware, software, data, and/or technology not provided by Ryft, regardless of whether such combination or integration is permitted under the terms of the Agreement; (iv) any third party components included in or with the Software; or (v) any damage caused by abuse, abnormal physical or electrical stress on, or improper use of Ryft ONE.
7.3 Disclaimer. Ryft does not warrant that the Customer’s use of Ryft ONE will be error-free or uninterrupted. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THESE TERMS, RYFT ONE AND ALL HARDWARE, SOFTWARE, DOCUMENTATION, MAINTENANCE, SUPPORT, AND OTHER SERVICES PROVIDED BY RYFT OR RESELLERS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND RYFT AND ITS RESELLERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, NONINFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AVAILABILITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
7.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL RYFT (OR ITS RESELLERS, EQUIPMENT/COMPONENT PROVIDERS, OR LICENSORS) BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, OR STRICT LIABILITY. RYFT’S (AND ITS RESELLERS’, EQUIPMENT/COMPONENT PROVIDERS’ AND LICENSORS’) AGGREGATE LIABILITY FOR ANY DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO RYFT (OR ITS RESELLERS) for THE SPECIFIC ANNUALIZED SUBSCRIPTION PERIOD FOR the SPECIFIC HARDWARE UNIT AND SOFTWARE GIVING RISE TO LIABILITY.
SECTION 8. INDEMNIFICATION
8.1 Indemnification by Ryft. Ryft will defend at its own expense any action against Customer brought by a third party to the extent the action is based upon a claim that Ryft ONE infringes the United States intellectual property rights of such third party, and Ryft will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If Ryft ONE becomes, or in Ryft’s opinion is likely to become, the subject of an infringement claim, Ryft may, at its option and expense: (i) procure for Customer the right to continue use of Ryft ONE; (ii) modify Ryft ONE so that it becomes non-infringing; or (iii) refund to Customer a pro-rata portion of the Fees pre-paid for the then current Subscription Period, less a reasonable allowance for any prior use thereof. Notwithstanding the foregoing, Ryft will have no obligation with respect to any infringement claim to the extent based upon (a) any use of Ryft ONE not in accordance with these Terms or for purposes beyond the scope set forth in the Documentation; (b) any use of any release of the Software other than the most current release made available to Customer; (c) any modification to Ryft ONE by any person other than Ryft or its authorized agents or subcontractors; (d) any combination or integration of Ryft ONE with hardware, accessories, software, data, services, and/or technology not provided by Ryft; or (e) any third party software or OSS. This Section states Ryft’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
8.2 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (ii) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified Party will reasonably cooperate with the indemnifying Party, at the indemnifying Party’s expense, to facilitate the settlement or defense of any claim or suit.
SECTION 9. TERM AND TERMINATION
9.1 Term and Renewals. This Agreement will continue to apply as long as the Subscription Period under an applicable Order remains in effect, unless earlier terminated by either Customer or Ryft as set forth herein. The Subscription Period set forth in any Order will automatically renew for successive periods equal in length to the initial Subscription Period, unless either Party provides notice to the other of its intent not to renew no less than ninety (90) days prior to the end of the then-applicable Subscription Period. Ryft reserves the right to adjust its pricing at any time after the start of the initial Subscription Period, and Subscription Period renewals or extensions will be priced in accordance with Ryft’s pricing that is current at the time of the renewal or extension.
9.2 Termination for Cause. Either Party may terminate this Agreement and applicable Orders immediately on giving notice in writing to the other Party if the other Party commits a material breach (including any non-payment of fees due other than fees subject to a good faith dispute) and, in the case of a material breach capable of being cured, fails to cure that breach within the following timeframes: (i) ten (10) days after notification of non-payment of fees in accordance with Section 5.2; and (ii) sixty (60) days after receipt of a request in writing to cure any other material breach. Ryft may terminate this Agreement and applicable Orders effective immediately upon written notice to Customer, if Customer ceases business operations, assigns its assets for the benefit of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substantially all of its assets.
9.3 Effects of Termination or Expiration. Upon termination or expiration of this Agreement: (i) any outstanding amounts owed by Customer to Ryft will become immediately due and payable; (ii) all use and other rights granted to Customer under Section 1 of this Agreement will immediately cease to exist; and (iii) Customer will promptly return to Ryft all Hardware in accordance with Section 1.2, discontinue all use of the Software, erase all copies of the Software from Customer’s computers, return or destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control, and certify in writing to Ryft that it has fully complied with these requirements.
9.4 Self-Help. Customer agrees that Ryft may include in Ryft ONE and utilize self-help code in connection with enforcing its rights at the end of the Subscription Period, including, as applicable, an electronic means for Ryft to: (a) retrieve or delete copies of Software, (b) prevent or restrict use, performance or functionality of Software or Ryft ONE, or (c) discontinue access to Software. Ryft may also repossess the Ryft ONE. Customer accepts and authorizes Ryft to undertake the foregoing self-help remedies and to file security interests in and to the Hardware and Software.
9.5 Survival. Sections 1.4 (Restrictions), 3 (Ownership), 5 (Pricing; Payment), 6 (Confidentiality), 7 (Warranty and Liability), 8 (Indemnification), 9.3 (Effects of Termination or Expiration), 9.4 (Self-Help), 9.5 (Survival), 10 (Export and U.S. Government Use), 11 (Arbitration), and 12 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
SECTION 10. EXPORT AND U.S. GOVERNMENT USE
10.1 Export. Customer shall comply with export-related laws and regulations, including the requirements of the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Hardware or Software (or parts thereof) to any applicable jurisdiction, person or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Customer will defend, indemnify, and hold harmless Ryft and its Resellers from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
10.2 Commercial Items. The Hardware, Software and Documentation are each a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically the Software and Documentation are “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 acquire Hardware, Software and Documentation with only those rights set forth herein.
SECTION 11. ARBITRATION
This Agreement will be governed by the laws of the Commonwealth of Virginia, without giving effect to any conflict of laws principles that would cause the law of another jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each Party agrees to negotiate in good faith to resolve any dispute, claim or controversy arising out of or related to this Agreement. In the event the Parties are unable to resolve the dispute within fifteen (15) days following the commencement of negotiations, each Party shall escalate the dispute through the appropriate levels of senior management, until the resolution of the issue is achieved or the respective senior personnel cannot agree to a resolution of the dispute. Unless otherwise agreed to by both Parties, in no event shall the escalation process exceed thirty (30) days. Except for disputes, controversies or claims regarding intellectual property, any dispute, controversy or claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or related to this Agreement which remains unresolved following the negotiations and escalation procedures set forth herein, shall be resolved by binding arbitration pursuant to this Section and the then-current rules and supervision of the American Arbitration Association (“AAA”). Issues of arbitrability shall be determined in accordance with the federal substantive and procedural laws relating to arbitration. A single arbitrator (the “Arbitrator”), who is licensed to practice law and is knowledgeable in the subject matter of this Agreement, shall be appointed by mutual agreement of both Parties, however, in the event that the Parties fail to agree on an Arbitrator within ten (10) days from the date of a request for arbitration, then the Arbitrator will be appointed by the AAA. The Arbitrator shall issue a written report to the Parties which details the basis of any arbitration award. The Arbitrator’s decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The Arbitrator shall not have the power to award punitive or exemplary damages. Either Party may make an application to the Arbitrator seeking interim injunctive relief to be in effect until such time as the arbitration award is rendered or the dispute is otherwise resolved. Each Party shall bear its own attorneys’ fees associated with the arbitration and other costs and expenses of the arbitration shall be borne equally by the Parties. If court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney’s fees which are reasonably incurred by the other Party. Any arbitration or litigation shall be held in Fairfax County, Virginia. This Section shall survive any expiration or termination of this Agreement and shall continue to be enforceable in the event of the bankruptcy of a Party. Nothing set forth herein shall be deemed to prevent either Party from seeking injunctive relief prior to the appointment of an Arbitrator.
SECTION 12. REVISIONS TO TERMS
THESE TERMS 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 Terms available on its website at www.ryft.com/legal, and update the version date at the top of the document. Any changes to the Terms will be effective immediately for new Customers. For existing Customers, the changes will be effective thirty (30) days after the updated Terms are posted on Ryft’s website. If you do not agree to the updated Terms, stop using the Ryft ONE and contact Ryft immediately. Otherwise, your continued use of the Ryft ONE constitutes your acceptance of the updated Terms, inclusive of any changes. PLEASE CHECK RYFT’S WEBSITE REGULARLY TO VIEW THE CURRENT TERMS.
SECTION 13. MISCELLANEOUS
Customer shall not, in whole or in part, transfer or assign this Agreement, any Order, or any right granted hereunder, except as expressly provided otherwise in this Agreement or upon written consent of Ryft. Absent such consent, any attempted transfer or assignment by Customer shall be null and void. Ryft may assign its rights or delegate its obligations hereunder without Customer’s prior consent. To the extent not prohibited hereby, this Agreement shall be binding upon and inure to the benefit of Ryft and Customer and Ryft’s and Customer’s successors and permitted assigns. No term or provision contained herein shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party against whom enforcement thereof is sought. Ryft and its Resellers shall not be liable to Customer for any failure, delay, or interruption in the performance of any of the terms or conditions due to causes beyond their reasonable control, including, without limiting the generality of the foregoing, strikes, boycotts, common carriers, labor disputes, embargoes, acts of God, acts of public enemy, acts of governmental authority, floods, riots, or rebellion. If any term or provision under this Agreement is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, or enforceability of the remainder of the Agreement shall not thereby be affected, and the Agreement shall be deemed amended to the extent necessary to delete such provision and replace it with an alternative consistent with the original intent to the maximum extent permissible under applicable law. This Agreement states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. Ryft may refer to Customer as a Ryft customer on Ryft’s website and in sales presentations, and may use Customer’s name and logo for such purposes. Neither Party will issue a press release announcing its relationship with the other Party without the other Party’s prior approval, not to be unreasonably withheld or delayed.
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