Rivial License Agreement

GENERAL: Rivial Data Security (“Rivial”) will provide to Subscriber access to the Rivial Software-as-a-Service Platform (“Rivial Platform”), which shall include its Software and/or specified services as part of the Rivial Platform offerings as referred to in the Rivial Sales Quote. The parties acknowledge that these Services, as more fully defined below, include software applications and may include third-party data licensed from third-parties, all of which are governed by the terms of this Agreement. Rivial’s performance in connection with any Services provided in accordance with this Agreement is conditional upon Subscriber fulfilling its obligations as set forth in herein.

SOFTWARE AS A SERVICE (“SaaS”) END USER LICENSE AGREEMENT

Definitions
1. "License" shall mean the license to use the Software granted to Subscriber in Section 1.4 hereof.
2. "Rivial Services" are certain specified services that are provided by Rivial SaaS Platform and made commercially available by Rivial pursuant to the terms of this Agreement.
3. “Rivial Platform” refers to the either or both of hardware and software, owned, licensed, subscribed to, or managed by Rivial and to which Rivial grants the Subscriber and Subscriber’s users access to that portion of the Rivial Platform providing the Security Services (comprising in part “Services” as defined herein) as set forth in the Rivial Sales Quote.
4. “Rivial Sales Quote" is the pricing plan, proposal, or statement of work from Rivial for the sale of specified products and services pursuant to this Agreement, and as agreed to and accepted by Subscriber’s electronic signature through the Rivial website, or by hard copy bearing an inked signature, evidencing Subscriber’s execution thereof.
5. "Rivial Service Description" is the formal Rivial commercial service offering defining the scope and coverage of the Services, referenced in the Rivial Sales Quote and incorporated hereto.
6. "Service or Services" means, in whole or in part, and individually or collectively the Security Services, the Rivial Platform, the Software, and any other professional services in the Rivial Software Service Description referenced in the Rivial Sales Quote.
7. "Software" refers to the application software developed and/or distributed by Rivial, as referenced by or in the Rivial Sales Quote, and as described in the Rivial Software Service Description.
8. "Subscriber" means the Customer named in the Rivial Sales Quote and/or associated Client Purchase Order.
9. "Subscriber Data" means any data, content, code, video, images or other materials of any type that Subscriber or Subscriber’s Sub-Customer(s) uploads, submits or otherwise transmits to or through Services; (ii) reports and documents generated by Rivial or the Service from such data, metadata, content, code, video, images or other materials submitted by or on behalf of Subscriber.
10. "Users" means those users, contractors, and other end users, as applicable, authorized by the Subscriber to use the Services in accordance with this Agreement. For Services that are specifically designed to allow the Subscriber’s customers, suppliers or other third parties to access the Services to interact with the Subscriber, such third parties will be considered “Users” subject to the terms of this Agreement.
11. "Third Party Data" means data obtained by Rivial from public sources or sources under license by third party vendors, user submissions, and other commercially available data sources for use with the Service, such as reported phishing incidents or internet domain name purchases.
12. "Sub-Customer" means any business entity that is Subscriber’s customer to whom Subscriber is providing services and will utilize Rivial Platform to deliver some or all of these services.
SaaS End User License Acceptance. The Software provides the functionality as specified in the printed Rivial Software Service Description and product documentation. The Software, including any pre-existing data, are proprietary and the property of Rivial and its suppliers and Rivial retains any and all rights, title and interest in and to the Software, including in all copies, improvements, enhancements, modifications and derivative works of the Software. Any licensee or sublicensee, by its use of the software accepts and agrees to be bound by the terms of this agreement. BY SELECTING THE “ACCEPT” OPTION PRIOR TO LOGGING INTO THE SOFTWARE, ANY LICENSEE, SUBLICENSEE OR USER HEREBY ACKNOWLEDGES AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE LICENSEE, SUBLICENSEE OR USE DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, ACCESS TO AND USE OF THE SOFTWARE WILL NOT BE PERMITTED OR AUTHORIZED BY RIVIAL.
Third Party Data. The Software may utilize confidential and proprietary Third Party Data in processing Subscriber Data and generating various reports and reporting data. Such Third Party Data may not be accurate, complete, or up-to-date and is subject to ongoing and continual change without notice. Neither Rivial nor its Third Party Data sources make any representations or warranties regarding the accuracy, completeness, or currency of such data and assume no responsibility, for the accuracy, completeness, or currency of the Third Party Data, or any decisions Subscriber makes, based in whole or part on such Third Party Data. Third Party Data is not a substitute for Subscriber’s own judgment, professional advice, or for the need to seek additional input and research prior to making any decisions based on such data, and accordingly THIRD PARTY DATA ALONE SHOULD NOT BE USED TO MAKE DECISIONS. Moreover, Subscriber acknowledges that the Third Party Data will not be used: i) in determining personal, family or household eligibility for obtaining credit or insurance; ii) nor shall it be used for employment purposes (but may be used when evaluating an individual as an independent consultant vendor); nor iii) for any other purpose governed by the Fair Credit Reporting Act. Subscribers will abide by all applicable laws as a condition for continued use of their Third Party Data. Rivial will use reasonable commercial efforts to: (i) help ensure the accuracy and appropriateness of the Third Party Data before it is selected for use with the Service; (ii) to promptly remove Third Party Data from the Service that is identified as such and in connection with which Rivial has been given reasonable notice; and (iii) promptly advise Subscriber of known or suspected problems and/or concerns with Third Party Data.
Software License Grant. Subject to the terms and conditions of this Agreement, Rivial grants to Subscriber a limited, conditional, non-exclusive, non-transferable license to use the Software both in Subscriber’s internal business operations, during the term of this license (“License”). During such license term, and where such license is neither revoked or otherwise terminates, Subscriber and Subscriber’s authorized Users may: (i) use the Software within the Rivial Security Services Environment; and (ii) produce reports for their internal use. It is expressly understood and acknowledged by the parties hereto that no third party may rely in any manner on the reports, results, recommendation work product provided by or generated through the Service, and that all data is provided for informational purposes only for use by the Subscriber. Subscriber’s rights to use the Services shall be limited to those expressly granted in this Agreement. All rights not expressly granted to Subscriber are retained by Rivial. The Services are protected by copyright laws, trade secret, as well as laws and any applicable regulations and/or treaties related to other forms of intellectual property. Rivial owns, or has the necessary rights in, all intellectual property rights in the Services necessary to provide the Services to Subscriber, and for Subscriber to access and utilize, the Services on the terms provided herein. Subscriber is granted only limited, conditional, non-exclusive, and non-transferable rights hereunder to use the Service and related user documentation during the term of the License as specified in the Rivial Sales Quote, and thereafter, to use the reports and documents generated during the term of the License for Subscriber’s internal, historical or compliance purposes. Use of the Services or related user documentation is provided on an “AS IS” without warranty merchantability or fitness for a particular purpose, or warranty of any other kind, express or implied, at law or in equity. The parties hereto agree that any reports and documents will be treated as Confidential Information, in accordance with Section 2.6, notwithstanding the termination or expiration of this Agreement. Subscriber grants
Rivial the right to use, process, collect, copy, store, transmit, modify and create derivative works of Subscriber Data only to the extent necessary to provide, improve, upgrade or modify the applicable Service to Subscriber in accordance with and during the term of this Agreement, but such right shall also include any additional post-termination period during which Rivial provides the Customer with access to retrieve an export file of Subscriber’s content, provided, however, that the time for such access to retrieve shall not exceed 60 days. The license granted to Subscriber by this Agreement shall be limited to the number of user ID’s, or capacity (i.e., number of vendors etc.) provided for pursuant to the associated Rivial Sales Quote, and shall only be valid during the License term as set forth in the Rivial Sales Quote. Rivial shall make only such copies of the Subscriber Data as may be necessary to perform its obligations under this Agreement or as otherwise part of its regular internal backup, disaster recovery or business continuity practices. Concurrently with the term of this Agreement, Subscriber shall have taken and will on an ongoing basis continue taking reasonable steps to secure its information infrastructure, including restricting access (i) to user IDs and passwords, and (ii) access to the Software to those of its users who are authorized by Subscriber to use the Software. Subscriber remains solely and exclusively responsible for any and all actions taken by Subscriber or its users using Subscriber accounts and passwords. Subscriber agrees to immediately notify Rivial of any unauthorized use of the Software to which Subscriber becomes aware, or reasonably suspect.
Subscriber agrees not to use or permit any use of the Services, including uploading, emailing, posting, publishing or otherwise transmitting any Subscriber Data, or any Services-generated work product or report, or third party content (collectively, “Material”), for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that it knows to be false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, (f) frame, scrape, link or mirror any content forming a part of the Service, other than Subscriber’s own intranets or otherwise for its own internal use; (g) knowingly upload to the Services or use the Services to send or store viruses, worms, time-bombs, Trojan horses or other harmful or malicious code or (h) otherwise violate applicable laws, ordinances or regulations. Subscriber expressly agrees that it will not utilize content that would constitute a crime or expose Subscriber or Rivial to criminal or civil liability, and Rivial reserves the right to immediately terminate this Agreement and Subscriber’s access to and use of the Services in the event such content is used by Subscriber. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Subscriber Data. Rivial reserves the right, but has no obligation, to take remedial action if any of Subscriber’s Material violates the foregoing restrictions, including removing or disabling access to such Material and terminating Subscriber’s license. Subscriber expressly acknowledges and agrees that Rivial shall have no liability to the Subscriber, Subscriber’s Sub-Customers, or any of Subscriber’s clients in the event that Rivial takes such action or actions.
Restrictions on Transfer, Use, Alteration and Copying. Subscriber may not, without Rivial’s prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Services except as expressly provided in this Agreement; (ii) creation of any derivative works based on the Service or its accompanying documentation, including but not limited to translations, (iii) alteration of any program files or libraries in any portion of the Service, or reproduction of the database portion or creation of any tables or reports relating to the database structure; (iv) reverse engineering, disassembly, or decompiling of the Service; (v) use of the Service in connection with service bureau, facility management, timeshare, service symbol or like activity whereby Subscriber operates or uses the Service for the benefit of a third party; (vi) use of the Service, including any data, information or reports generated by the Service, by any party other than Subscriber and its subcontractors and agents acting on Subscriber’s behalf and subject to the terms of this Agreement; or (vii) falsely imply any sponsorship or association with Rivial. Any violation of this section shall result in immediate termination of this Agreement, which termination shall be in addition to any other remedies at law or in equity available to Rivial. Except for the purposes of training, translation, Subscriber’s internal backup, operational support or internal distribution, Subscriber may not copy or allow others to copy any part of the user documentation or other printed material provided with the Service without Rivial’s written consent.
Security. Rivial implements reasonable security measures to help protect Subscriber Data from cyberattack. However, subject to Rivial’s taking reasonable measures to secure Subscriber data for transport, Subscriber understands that use of the Services necessarily involves transmission of Subscriber Data over networks that are not owned, operated or controlled by Rivial, and Rivial shall not responsible for any of Subscriber Data lost, altered, intercepted or stored across such networks. Notwithstanding the foregoing, Rivial acknowledges and confirms that it has in place and will maintain throughout the term of this Agreement appropriate technical and organizational measures to help secure against the accidental, unauthorized or unlawful processing, destruction, loss, damage or disclosure of Subscriber Data and adequate security programs and procedures to ensure that unauthorized persons or parties do not have access to Subscriber Data or any equipment used to process such information or data.
Indemnity for Subscriber Data. Subscriber shall bear sole responsibility for any information uploaded or supplied by Subscriber, including any Sub-Customer, in connection with use of the Service, including but not limited to ensuring that the use of the Service to store, process and transmit Subscriber Data is compliant with all applicable laws and regulations. IN NO EVENT SHALL RIVIAL BEAR ANY LIABILITY FOR THE USE OR LOSS OF ANY INFORMATION UPLOADED OR SUPPLIED BY SUBSCRIBER OR SUBSCRIBERS AFFILIATES IN CONNECTION WITH USE OF THE SERVICE. SUBSCRIBER FURTHER AGREES TO HOLD RIVIAL HARMLESS AND INDEMNIFY RIVIAL IN CONNECTION WITH ANY AND ALL LIABILITY ARISING FROM SUBSCRIBER'S EMPLOYEES OR CUSTOMERS' EMPLOYEES ACCESS TO, USE OF, EXCHANGE OF, OR FAILURE TO EXCHANGE INFORMATION WITH, THE PLATFORM OR SERVICES. Subscriber will defend, indemnify and hold harmless Rivial from and against any loss, cost, liability or damage, including attorneys’ fees, for which Rivial becomes liable arising from or relating to any claim relating to Subscriber’s, including any Sub-Customer’s, inappropriate use of Subscriber Data in violation of this Agreement, including but not limited to any claim brought by a third party alleging that Subscriber Data, or Subscriber’s use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. Rivial shall not be responsible or liable any negligent or unintentional deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data. It is expressly acknowledged and agreed that damages for any liability in connection with this Agreement shall be limited to the total of Subscriber fees, limited to one year’s prior fees and as further set forth herein.
Legal Compliance. Subscriber agrees and warrants that Subscriber’s use of Services and all Subscriber Data is at all times compliant with applicable local, state, federal and international laws and regulations (“Laws”). Subscriber represents and warrants that: (i) Subscriber has obtained all necessary rights, releases and permissions to provide all Subscriber Data to Rivial and to grant the rights granted to Rivial in this Agreement and (ii) Subscriber Data and its transfer to and use by Rivial as authorized by Subscriber under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security and confidentiality related obligations set forth in this Agreement or in the Rivial Privacy Policy https://www.rivialsecurity.com/privacy-policy, Rivial assumes no responsibility or liability for Subscriber Data, and Subscriber shall be solely responsible in connection with Subscriber’s and User’s use, disclosure, storage, or transmission of Subscriber Data.
Term of Service Period. Services provided under this Agreement shall be provided for the period defined in the Rivial Sales Quote, unless earlier suspended or terminated in accordance, as applicable, with this Agreement or the Rivial Sales Quote.
Limited Warranty. THIS SECTION SETS FORTH SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR UNCORRECTED SERVICE FAILURE: Rivial represents and warrants to Subscriber that the Services will function and perform in substantial compliance with the printed product information. Rivial makes no warranty that the Software will meet Subscriber’s requirements or operate under Subscriber’s information infrastructure or in conformance with Subscriber’s specific conditions of use.
SERVICE FAILURE: Except as otherwise expressly provided herein, In the event of a material malfunction resulting in the failure of the Services to operate in a manner not conforming to the Product documentation (“Service Failure”), Subscriber shall promptly notify Rivial in writing of such Service Failure and Rivial will use reasonable efforts to correct the Service Failure to bring it into compliance with the provisions of the Rivial Sales Quote. If any Service Failure reported to Rivial by Subscriber remains uncorrected within thirty (30) days of Subscriber’s written notice to Rivial, Subscriber’s remedy is as follows: Subscriber may terminate this Agreement, and shall not be liable for any unpaid balance from the date such notice has been given to Rivial.
PRE-PAID SERVICES: In the event of a Service Failure in connection with which Subscriber has pre-paid and provided written notice to terminate, Subscriber shall receive a refund based on the period of time following written notice on a pro-rata basis. ALL LIMITED WARRANTIES ON THE SERVICE ARE GRANTED ONLY TO SUBSCRIBER AND ARE NON-TRANSFERABLE. ANY SUCH TRANSFER SHALL BE VOIDABLE AND IS VOID. THIS REMEDY REPRESENTS RIVIAL’S EXCLUSIVE DUTY AND SUBSCRIBER’S SOLE REMEDY EVEN IN THE EVENT THAT THE REMEDY SHOULD FAIL IN ITS ESSENTIAL PURPOSE. RIVIAL MAKES NO WARRANTY THAT OPERATION OF THE SERVICE WILL BE SECURE, ERROR FREE, OR FREE FROM INTERRUPTION. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT OR OTHERWISE AGREED TO IN WRITING BY RIVIAL, THE SERVICES ARE PROVIDED TO SUBSCRIBER “AS IS” AND “AS AVAILABLE.” RIVIAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER MUST DETERMINE WHETHER THE SERVICE SUFFICIENTLY MEETS SUBSCRIBER’S REQUIREMENTS FOR SECURITY AND AVAILABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SUBSCRIBER BEARS SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED BY SUBSCRIBER, INCLUDING ANY LOSS INCURRED BY SUBSCRIBER'S EMPLOYEES, AFFILIATES OR SUBCRIBER'S CUSTOMERS' EMPLOYEES OR AFFILIATES RESULTING FROM ANY SERVICE FAILURES. RIVIAL WILL UNDER NO CIRCUMSTANCE BE RESPONSIBLE OR LIABLE FOR THE LOSS OF SUBSCRIBER OR USER DATA ON ANY SUBSCRIBER COMPUTER OR INFORMATION STORAGE DEVICE. IN ADDITION, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT (A) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICER; (B) THE SERVICE IS NOT INTENDED TO COMPRISE OR IMPLY IN ANY WAY, SUBSCRIBER’S COMPLIANCE WITH ANY STATUTE, RULE, REGULATION OR STANDARD; AND (C) SUBSCRIBER IS AND REMAINS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH APPLICABLE LAWS RULES AND REGULATIONS.
Indemnification for Claims Related to Intellectual Property. Rivial, in its sole and exclusive discretion, shall, at its expense, indemnify and hold harmless Subscriber, against any claims, demands, suits or proceedings (“Claims”) made or brought against Subscriber by a third party alleging that the use of the Service as contemplated hereunder, and excluding Claims based upon Data provided by Subscriber that infringe a patent, copyright, trademark, or other intellectual property right of a third party or misappropriates such third party’s trade secrets, or any other Claim based upon generally available public data. Upon Subscriber’s receiving notice of a Claim, Subscriber shall (a) give Rivial prompt written notice of the Claim; (b) give Rivial sole control of the defense and settlement of the Claim (provided that Rivial may not settle or defend any claim unless it unconditionally releases Subscriber of all liability and does not attribute any blame or contributory fault to Subscriber); and (c) provide to Rivial, at Rivial’s cost, all reasonable assistance in the defense or settlement of such Claim. This Section 1.10 comprises Rivial's limit of liability and Subscriber's exclusive remedy for any claim of intellectual property infringement against Subscriber and arising out of Subscriber’s use of the Services.
License by Subscriber to Use Feedback. Subscriber grants Rivial an unconditional, worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Subscriber or Users relating to the Services, provided that such use and incorporation shall be made on an anonymized basis and without identification or attribution to Subscriber or User. Subscriber hereby acknowledges that is has obtained consent from Subscriber’s Users in connection with such use and incorporation.

GENERAL TERMS AND CONDITIONS

Fees, Invoices and Payment. Subscriber shall be invoiced and pay Rivial the fees due for the Services as stated in the Rivial Sales Quote (the “Fees”). The Fees include all charges associated with the Services selected, any overage fees resulting from additional Services beyond the quantity in the plan, and any additional or incidental charges. Subscriber shall pay all invoices within 30 days of receipt of the invoice; thereafter unpaid balances which are not the basis of a good faith dispute shall accrue interest at a rate of 1.5% per month. If Subscriber fails to pay all invoices or charges for referencing these Terms within thirty (30) business days of Rivial’s notice to Subscriber that payment is past due or delinquent in addition to Rivial’s other remedies, Rivial may suspend or terminate access to and use of the Service by Subscriber and/or Subscriber’s Users.
Service Upgrades and Downgrades. If Subscriber chooses to upgrade a Service or increase the number of Services at any time during a pre-paid Subscription Term (a "Subscription Upgrade"), a prorated incremental Subscription Charge associated with such Subscription Upgrade during Subscriber’s then current Subscription Term will be due and payable on the date such Subscription Upgrade is invoiced.
Equitable Relief. Subscriber acknowledges that any use or disclosure of the Software or Third party Data or Subscriber Data in a manner inconsistent with the terms of this Agreement, or breach of confidentiality may cause Rivial irreparable damage for which other remedies may be inadequate, and Subscriber agrees not to oppose any request to a court of competent jurisdiction by Rivial, with respect to the Subscriber Data, for injunctive or other equitable relief seeking to restrain such use or disclosure. Subscriber waives any right it may have to require Rivial post a bond or other form of security as a precondition to any such injunctive relief.
Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
Confidential Information. "Confidential Information" means any information one party discloses to the other under this Agreement which is identified as confidential or proprietary. Confidential Information does not include information which: is rightfully obtained by the recipient without breaching any confidentiality obligations; is or becomes known to the public through no act or omission of the recipient; the recipient develops independently without using Confidential Information; or is disclosed in response to a valid court or governmental order if the recipient notifies the disclosing party and assists in any objections. The recipient may use Confidential Information only for the purposes expressly permitted pursuant to this Agreement, and shall treat it with the same degree of care as it does its own confidential information, but with no less than reasonable care. This section shall not affect any other confidential disclosure agreement between the parties.
Limitation of Liability. Except for breach of Subscriber's payment obligations or situations arising as a result of either party’s gross negligence or willful misconduct, or a breach of confidentiality or indemnity provisions granted hereunder, each party's aggregate liability to the other for claims arising out of or relating to this Agreement, whether for breach or in tort, at law or in equity, is limited to the price charged to Subscriber for the Services for the license period of the Agreement. EXCEPT AS OTHER PROVIDED HEREIN, RIVIAL SHALL NOT BE HELD LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT, BREACH OF WARRANTY, IN TORT, AT LAW OR IN EQUITY, INCLUDING NEGLIGENCE, AND EVEN RIVIAL HAS PREVIOUSLY BEEN ADVISED OF, OR COULD REASONABLY HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES.
Termination: Either party may terminate this Agreement if a breaching party fails to cure any breach of this Agreement within thirty (30) days of written notice from the non-breaching party specifying such breach.
1. OBLIGATIONS UPON TERMINATION. Upon termination of this Agreement, Subscriber shall discontinue use of the Service and Subscriber shall be responsible for deleting all Subscriber Data from its information infrastructure, including any backups should they exist.
2. SURVIVAL UPON TERMINATION. The other rights and obligations of the parties pursuant to Paragraphs; 1.5, Restrictions on Transfer; 1.7, Indemnity for Subscriber Data; 1.8, Legal Compliance; 1.10, Limited Warranty; 1.10, Indemnification; 2.5, Confidential Information; 2.6, Limitation of Liability; 2.7, Termination and 2.8. Audit; of this Agreement shall survive and continue after any termination of this Agreement.
3. POST-TERMINATION TRANSITION SERVICES. In the event of Termination of this Agreement or SOW, and provided that this Agreement or SOW has not been terminated by Rivial due to Subscriber’s undisputed non-payment of any amount due Rivial, Rivial will provide Subscriber with assistance reasonably requested by Subscriber to effect the orderly transition of the Services, in whole or in part, to Subscriber (“Transition Services”) following the termination of this Agreement or a SOW, in whole or in part. The Transition Services shall be provided by Rivial as-available, on a time and materials basis and may include at Rivial’s then usual and customary hourly or project rates: (a) developing a plan for the orderly transition of the terminated Services from Rivial to Subscriber; (b) if required, transferring the Subscriber content; (c) using commercially reasonable efforts to assist Subscriber in acquiring any necessary rights to legally and physically access and use any third-party technologies and documentation then being used by Rivial in connection with the Services; (d) using commercially reasonable efforts to make available to Subscriber, pursuant to mutually agreeable terms and conditions, any third-party services then being used by Rivial in connection with the Services; and (e) such other activities upon which the parties may agree to in writing.
Audit. Upon reasonable notice to Subscriber, and during normal business hours, Rivial will have the right to audit Subscriber to ensure compliance with the terms of this Agreement. Rivial agrees to: (i) schedule each audit during business hours or at some other mutually agreeable time; (ii) be responsible for all time and materials costs of its own or third party auditors retained to conduct the audit; and (iii) abide by Subscriber’s reasonable security policies and practices.
Headings. Headings of sections in this Agreement are inserted for convenience only, and are in no way intended to limit or define the scope and/or interpretation of this Agreement.
Waiver & Severability. Failure on the part of either party to give notice of default, or delay in exercising any right or remedy hereunder, shall not operate as a waiver of any such right or remedy except as otherwise expressly stated in this Agreement. In the event that any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law.
Force Majeure. Neither party will be liable for any delay in performance hereunder if such delay is due to causes beyond the reasonable control of such party. In the event Rivial is the party unable to perform for more than 30 days, Subscriber shall have the right to terminate this Agreement and Rivial shall provide Subscriber with a pro-rata refund of fees paid upon any such termination.
Assignment. Except in the case of merger or sale of all or substantially all of a party’s assets, neither party may assign or otherwise transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other party. Such consent may not be unreasonably withheld.
Disputes, Arbitration and Class Action Waiver. Any disputes arising out of this Agreement shall be determined pursuant to the laws of the State of Indiana, without regard to its conflict of laws rules. The parties hereto agree to arbitrate any dispute arising out of or in connection with the performance of this Agreement before the American Arbitration Association (AAA), and pursuant to the AAA’s then effective rules and procedures. In any such dispute, the prevailing party will be entitled to reasonable attorneys fees and costs in connection with any such proceeding. In connection with any claim at law or equity that may be brought arising out this Agreement, Subscriber waives any right to commence class action litigation in either a judicial or arbitration proceeding.

Entire Agreement. This Agreement, together with its Attachments constitutes the entire agreement between the Rivial and Subscriber relating to the Services, and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and prevails over any conflicting or additional terms contained in any quote, purchase order, order document, acknowledgment, or other communication between the parties relating to the Services, even if Rivial uses such order documents for invoicing purposes.
Entire Agreement.

Rivial vCISO, Consulting, and MSP Partner Addendum (“Partner Addendum”)

For Services purchased by a Managed Service Provider, the terms of this addendum (“PARTNER Addendum”) shall apply in addition to the Rivial Terms and Conditions Agreement (“Agreement”). This Partner Addendum shall form a part of and be deemed to be incorporated into the Agreement. In the event of any conflict between the terms of this Partner Addendum and the Agreement, the terms of this Partner Addendum shall prevail only to the extent such terms are in conflict.
Definitions.
1. “Partner” shall mean the managed service provider that provides use and access rights to End Customer(s) to the Rivial SaaS Platform.
2. “End Customer” means either (1) a third-party individual, corporation or other entity provided access and use rights to Partner’s instance of the Rivial Platform Service by Partner, or (2) a third-party individual, corporation or other entity to whom the Partner delivers access and use rights to Partner’s instance of the Rivial Platform.
3. “Subscriber” as the term is defined in the Agreement and this Partner Addendum shall mean the Partner named in the Rivial Sales Quote and/or associated Partner Purchase Order. For the purposes of Services purchased by Partner, any reference to Subscriber in the Agreement shall be deemed to mean Partner.
4. “Subscriber Data” shall mean (1) any data, content, code, video, images or other materials of any type that Partner or its End Customer uploads, submits or otherwise transmits to or through the provision of Rivial Security Services (as defined in the Agreement and includes; and (2) reports and documents generated by Rivial or the Service from such data, metadata, content, code, video, images or other materials submitted by or on behalf of Subscriber. For the purposes of Services purchased by Partner and this Partner Addendum, Subscriber Data as defined in this Partner Addendum shall be controlling.
5. “Users” as the term is used in the Agreement and this Partner Addendum, shall mean those users, contractors, and other end users, as applicable, authorized by the Subscriber or its End Customer to use the Services in accordance with this Partner Addendum and the Agreement. For Services that are specifically designed to allow the Subscriber’s End Customers, suppliers or other third parties to access the Services to interact with the Subscriber, such third parties shall be deemed “Users” subject to the terms of this Partner Addendum and to the Agreement.
PARTNER RESPONSIBILITES.
1. End Customer Agreements. to the terms of this Agreement, and as a non-waivable condition to providing End Customer Users rights to use and access the Rivial Platform, Partner shall require each End Customer to sign or otherwise assent (in a recorded manner acceptable to Rivial) to a legally binding agreement (“End Customer Agreement”). The End Customer Agreement shall:
  1. Permit the End Customer to have Partner deliver the Services, or to directly use the Services solely as described in this Agreement and in manner that is consistent in all respects with, and shall not exceed, the rights provided in this Agreement and the respective Sales Quote.
  2. Obligate the End Customer to acknowledge, agree to and comply with the restrictions in Section 1.5 (Restrictions on Transfer, Use, Alteration and Copying) and is at least as protective of Rivial’s intellectual property as the other provisions in this Agreement that restrict or condition access to and use of the Services.
  3. Require the End Customer to acknowledge that they are being granted limited licensed to the Services, and that all intellectual property rights in the Rivial Platform including but not limited to any Services are reserved to and owned exclusively by Rivial and/or its suppliers.
  4. Include language acknowledging End Customer and End Customer User express agreement to Section 1.7 (Indemnity for Subscriber Data) of the Agreement.
  5. Expressly identify Rivial as a third-party beneficiary to such End Customer Agreement. 3.2.
2. Partner Obligations
  1. If Partner becomes aware of any violation of this Partner or the Agreement by the End Customer, Partner will notify Rivial immediately and will reasonably assist in its efforts to enforce the terms of the End Customer Agreement. If Rivial determines that an End Customer User has breached the terms of the End Customer Agreement, it will notify Partner and Partner will assist Rivial in terminating the End Customer User's access to the Rivial Security SaaS Software and any associated Services.
  2. Partner shall be wholly responsible for the acts and omissions of the End Customer and hereby indemnifies and hold harmless Rivial from (a) any liabilities for End Customer acts or omissions at law or in equity and (b) any judgement, penalty, fine or damages resulting from such acts or omissions.
  3. Partner shall include language in the End Customer Agreement providing that (a) End Customer express waiving any rights to sue Rivial at law or in equity for violations of the this Partner Addendum or any Sales Quote, (b) under no circumstances shall End User be considered a third party beneficiary to any agreement (including this Agreement) between Partner and Rivial.
  4. Subject to the restrictions, terms, and applicable provisions of the Agreement, Partner shall have sole operational and managerial control over the Services provided to the End Customer and shall not otherwise resell, distribute, sublicense or transfer Services to any End Customer or other third-party.
  5. Upon Request and within 10 business days notice, Partner shall submit a report to Rivial of 1) all Rivial SaaS platform subscriptions sold to or in use by End Customers regardless whether Partner has any new End Customer subscriptions to report; and 2) a projection of expected subscriptions sold to or in use by End Customers for a to-be-specified period to time. Partner will not be obligated to furnish these reports more than 4 times in a 12 month period.
  6. Partner represents and warrants that it has obtained all rights, consents, and authority necessary to collect, process, store, transmit and otherwise use the electronic data uploaded or processed by or for the End Customer through Rivial Security SaaS Platform.
Support. Partner shall be responsible to provide all technical support related to the Services directly to End Customers. If Rivial receives support requests from End Customer Users, Rivial will direct Users of End Customer to Partner and Partner shall be responsible for resolving such issues. Before submitting any technical support request to Rivial, Partner shall use commercially reasonable efforts to resolve any problems with the underlying Services, and Rivial shall use commercially reasonable efforts to resolve any technical support requests. Partner's failure to perform its support obligations to in a professional and workmanlike manner as determined by industry best practices shall constitute a material breach of the Agreement.
Trademarks. Partner acknowledges and agrees that Rivial owns all of its trademarks (‘Rivial Marks”). Rivial grants Partner a non-exclusive, limited, non-transferable, royalty-free, revocable license during the Term to use the Rivial Marks solely in connection with the marketing and distribution of the Rivial products as permitted in this Agreement, without the right to sublicense, in accordance with the guidelines provided by Rivial. Use of Rivial Marks in violation of any guidelines provided by Rivial or as provided under this Agreement, shall constitute a material breach of the Agreement. Partner agrees that its use of the Rivial Marks after termination of the Agreement for any reason will cause Rivial irreparable harm and will entitle Rivial to seek legal and equitable relief, including immediate injunctive relief and damages as allowed by law. Partner acknowledges that any goodwill derived from the use of Rivial Marks under the Agreement inures solely to Rivial’s benefit. Partner acquires no right, title or interest in Rivial Marks or the goodwill associated with them, other than the limited license to use the Rivial Marks in accordance with the provisions of this Agreement. Partner will not at any time contest or aid in contesting the validity or ownership of Rivial’s Marks, or take any action in derogation of the Rivial’s rights herein. Partner shall not adopt, use, or register in any jurisdiction, whether as a corporate name, trademark, service mark, or indication of origin, Rivial Marks or trade dress. Partner may not disparage Rivial, Rivial Marks or Rivial products. Partner shall immediately inform Rivial upon becoming aware of any possible or actual infringement of intellectual property rights associated with Rivial’s products or Rivial Marks that arise from this Partner or the Agreement.
Partner’s Internal Use. Notwithstanding anything to the contrary in the Agreement, if Partner uses any of the Services for itself (“Internal Use Services”), then (i) for the purpose of Internal Use Services, the Partner shall be deemed to be a Subscriber of Rivial, with the term “Subscriber” interpreted as defined and used in Definition in Article 1 of the Agreement; (ii) Partner shall be bound by all the obligations of a Subscriber under the Agreement; (iii) the Agreement shall be deemed to have been executed by the Subscriber; and (iv) Subscriber shall execute a separate Sales Quote for the Internal Use Services.
Payment. Invoicing and Verification. Partner shall be charged fees in accordance with Section 2.1 of the Agreement and shall be responsible for invoicing and collecting fees and other charges from its End Customers. During the Subscription Term and for at least one (1) year thereafter, Partner will keep and maintain commercially reasonable written records and accounts regarding Partner’s use and distribution of the Rivial’s products ("Records"). To determine Partner’s compliance with the terms of this Agreement, and no more than once per year, Rivial may audit Partner’s records relating to the preceding twelve month (12) period after providing reasonable prior written notice. Rivial will bear the expense of any such audit.

RIVIAL SOFTWARE AS A SERVICE ("SaaS") LICENSE AGREEMENT

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