Terms of Service

Capitalized terms used herein and not defined shall have the meaning ascribed to such terms in the Order Form (as defined below). Customer and Rockhopper each may sometimes be referred to in these Terms and Condition (this “Agreement”) as a “Party” or collectively as the “Parties.”

The Parties hereby agree as follows:

1. DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
   1. “Add-in” means any third-party integration which we provide access to the Platform.
   2. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
   3. “Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any governmental authority applicable to such Party or any of its respective properties, assets, officers, directors, employees, consultants, or agents.
   4. “Authorized User” means Customer’s employees, contractors, or agents authorized by Customer to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that the number of Authorized Users shall not exceed the number of licenses set forth in the Order Form.
   5. “Confidential Information” means: (i) with respect to Rockhopper, the Platform, the Website, the Output, the Aggregate Data, the Usage Data, and any and all source code relating thereto and any other non-public proprietary information or trade secrets of Rockhopper, including without limitation financial data and projections, client and supplier information, business plans, strategies, methods, and technical data; and (ii) with respect to Customer, Customer Data and any other non-public proprietary information or trade secrets of Customer.
   6. “Customer Data” means any data that Customer or its Authorized Users submit to the Platform or Website, including, without limitation, personal information (such as name, email address, and other identifying information), files, spreadsheets, models, and any other content uploaded, entered, or otherwise transmitted by or on behalf of Customer through the Services.
   7. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Services, the Platform or the Website, as updated from time to time by Rockhopper.
   8. “Feedback” shall have the meaning set forth in Section 5.3.
   9. “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform, or any other associated software, firmware, hardware, computer system, or network.
   10. “Order Form” means an order form for the Services mutually executed by the Parties that sets forth, among other things, the Term, the Rates (as defined below) and any special terms applicable to Customer’s access to and use of the Services.
   11. “Output” means the reports, models, analyses, and related output that may be generated by Authorized Users use of the Platform and made available to Authorized Users as part of the Services.
   12. “Platform” means Rockhopper’s proprietary platform for last mile spreadsheet management.
   13. “Rates” means the fees for the Services as set forth in the Order Form.
   14. “Services” means Rockhopper provision to Customer of access to, and usage of, the Platform and the Website as set forth in this Agreement.
   15. “Usage Data” means the data that we collect in connection with our monitoring of the performance and use of the Platform by Customer and Authorized Users, including without limitation, date and time of access, the features used, and performance data associated with the Platform and Customer’s and Authorized Users’ use thereof.
   16. “Website” means any website through which we provide access to the Platform.
2. PROVISION OF SERVICES.
   1. Order Form. The Parties have entered into an Order Form, specifying the number of licenses for the Services being ordered from Rockhopper, the Rates, and the Term (as defined below). The terms and conditions of this Agreement are incorporated into the Order Form by reference.
   2. Services. During the Term, we will provide the Services to Customer subject to the terms and conditions of this Agreement. Subject to such terms and conditions, we hereby grant Customer a limited, non-exclusive, non-transferable (except as expressly permitted herein), non-sublicensable right to access and use the Platform during the Term, solely for Customer’s internal business purposes.
   3. Modifications; New Functionalities. We reserve the right to modify the Platform, the Website, the Add-in, and the Output from time to time by adding, deleting, or modifying features to improve the user experience and functionality. We will use commercially reasonable efforts to notify Customer of any material changes to the Platform that may adversely affect Customer’s use of the Services.
   4. Beta Features. From time to time, we may invite Customer to try “beta” features or functionalities of the Platform which are not generally available to our customers for production use at no charge. Customer acknowledges and agrees that beta features are provided “as is” and may contain bugs, errors, or other issues.
   5. Service Level Commitment. During the Term, Rockhopper, or our contractors, shall host the Platform such that the Platform is available for use by Customer and its Authorized Users. Rockhopper and/or our contractors shall use commercially reasonable efforts to maintain the availability of the Platform.
   6. Customer Obligations Regarding Licenses and Credentials. Customer hereby agrees not to, nor permit any of its Authorized Users to, share, distribute, or otherwise make available any licenses or credentials to any third party without the prior written consent of Rockhopper.
   7. Suspension. Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) we reasonably determine that the security or integrity of the Platform is at risk; (ii) Customer or any Authorized User is in breach of this Agreement; or (iii) as required by Applicable Law.
   8. Access to Information. We reserve the right to access, read, preserve, and disclose any information provided in connection with the Services to the extent reasonably necessary or desirable to (i) satisfy any Applicable Law, regulation, legal process, or governmental request; (ii) enforce this Agreement; (iii) respond to claims; (iv) respond to Customer’s requests for customer service; or (v) protect the rights, property, or safety of Rockhopper, its users, and the public.
3. FEES AND PAYMENT.
   1. Rates and Payments. In consideration for Customer’s access to and use of the Services, it shall pay Rockhopper the fees set forth in the applicable Order Form (the “Rates”) via ACH or wire of immediately available funds, in accordance with the payment schedule set forth in the applicable Order Form.
   2. Taxes. Rates and other charges due hereunder are in addition to, and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes now or hereafter imposed on, or collected by, either Party. Customer shall be responsible for, and shall pay, all such taxes applicable to its purchase of the Services.
   3. Late Payments. In the event that any invoiced amount is not received by the due date as set forth in Section 3.2 and Customer fails to cure such default within thirty (30) days of such due date, without limiting our rights or remedies, Customer shall pay interest on the past due amount at the rate of one and a half percent (1.5%) per month, calculated daily and compounded monthly, or the maximum rate permitted by Applicable Law, whichever is less.
   4. Non-Refundable. Unless otherwise expressly provided for in this Agreement, (i) all Rates are based on Services purchased and not on actual use; and (ii) all Rates paid under this Agreement are nonrefundable.
   5. No Contingency for Future Commitments. Customer agrees that payment of the Rates under this Agreement is not contingent on the delivery of any future Platform functionalities, features, Output, or any other future commitments by Rockhopper.
   6. No Deductions or Setoffs. All amounts payable to Rockhopper under this Agreement shall be paid by Customer to us in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
4. TERMINATION AND SUSPENSION.
   1. Term. The initial term of this Agreement shall be as provided in the Order Form (the “Initial Term”), unless terminated earlier pursuant to this Agreement’s express provisions. This Agreement will automatically renew for successive periods equal to the Initial Term (each, a “Renewal Term”), unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. The Initial Term and any Renewal Terms are collectively referred to as the “Term.”
   2. Termination. Either Party may terminate this Agreement effective on written notice to the other Party (i) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or (ii) if the other Party materially breaches this Agreement and such breach remains uncured for thirty (30) days after written notice of such breach.
   3. Suspension for Non-Payment. We may suspend the Services upon written notice to Customer if any undisputed invoiced amount is more than thirty (30) days past due. We will not suspend the Services while Customer is disputing the applicable charges in good faith and is cooperating diligently to resolve the dispute.
   4. Effect of Termination. Upon termination of this Agreement as set forth in Section 4.2: (i) we will stop providing the applicable Services, and Customer will immediately cease, and cause its Authorized Users to cease, all use of the Platform and the Website; (ii) each Party will return or destroy all Confidential Information of the other Party in its possession; and (iii) Customer shall pay all unpaid Rates and Taxes due through the effective date of termination.
   5. Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 3 (“Rates and Payment”) until Customer has paid all Rates, applicable Taxes, and other amounts due hereunder, Section 5 (“Confidentiality; Feedback”), Section 7 (“Intellectual Property”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), and Section 12 (“General Provisions”).
5. CONFIDENTIALITY; FEEDBACK.
   1. Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and/or proprietary information (but in no event less than a reasonable degree of care). The Receiving Party shall not, without the prior written approval of the Disclosing Party, use, disclose, or make available to any third party any Confidential Information of the Disclosing Party, except to its Representatives who need to know such Confidential Information in connection with this Agreement.
   2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party for which money damages alone would not be an adequate remedy, and therefore the Disclosing Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach.
   3. Feedback. During the Term, Customer may elect to provide us with feedback, comments, and suggestions with respect to the Platform, the Output, the Website, or the Services (“Feedback”). Customer agrees that all Feedback is and shall be given entirely voluntarily. All Feedback shall be exclusively owned by Rockhopper.
6. CUSTOMER DATA AND OUTPUT.
   1. Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses to our contractors and hosting providers, to use, process, copy, display, and store the Customer Data solely to provide the Services to Customer and its Authorized Users.
   2. Aggregated Data. Customer acknowledges and agrees that Rockhopper may use, and may permit its third-party service providers to access and use, Customer Data, in anonymous and aggregate format, and other data derived from the provision of the Services (“Aggregate Data”), to improve the Services, develop new products, and for other lawful business purposes.
   3. Output. Subject to the terms and conditions of this Agreement, Rockhopper hereby grants Customer a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use the Output for its internal business purposes during the Term.
   4. Data Security. We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Customer Data from unauthorized access, use, or disclosure.
7. INTELLECTUAL PROPERTY. As between the Parties, all right, title, and interest in and to the Platform, the Website, the Output, the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, or derivative works thereof, and all intellectual property rights therein, shall remain with and belong exclusively to Rockhopper. No rights are granted to Customer hereunder other than as expressly set forth herein.
8. USE AND LIMITATIONS OF USE.
   1. Restrictions on Use. Except as expressly permitted under Section 6.3 with respect to Output, Customer will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than an Authorized User to access or use the Platform; (ii) use the Services to store or transmit any Harmful Code; (iii) interfere with or disrupt the integrity or performance of the Services; (iv) attempt to gain unauthorized access to the Platform or its related systems or networks; (v) reverse engineer, disassemble, decompile, or otherwise seek to obtain the source code of the Platform; (vi) modify, copy, or create derivative works based on the Platform; (vii) sublicense, sell, resell, transfer, assign, distribute, or otherwise make available the Services to any third party; or (viii) access the Services to build a competitive product or service.
   2. Compliance. We have the right to monitor Customer’s compliance with this Section 8. If any such monitoring reveals that Customer is not using the Website, the Platform, the Add-in or the Output in compliance with this Agreement, in addition to other remedies that may be available to us, we reserve the right to suspend or terminate Customer’s access to the Services.
9. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
   1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization; (ii) it has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (iii) the execution, delivery, and performance of this Agreement do not and will not conflict with any other agreement to which it is a party.
   2. Disclaimer. ALL OUTPUT, DATA, AND OTHER INFORMATION PROVIDED BY ROCKHOPPER HEREUNDER ARE FOR INFORMATIONAL PURPOSES ONLY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE SERVICES, THE PLATFORM, THE WEBSITE, THE OUTPUT, AND ALL OTHER MATERIALS PROVIDED BY ROCKHOPPER HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE RATES PAID BY CUSTOMER HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM ARISES.
11. INDEMNIFICATION.
    1. Indemnification by Customer. Customer will indemnify, defend, and hold Rockhopper, our Affiliates, our suppliers and hosting providers, and our and their respective Representatives harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (“Losses”), incurred by any such parties arising out of or relating to: (i) Customer’s or any Authorized User’s use of the Services in violation of this Agreement; (ii) any Customer Data; or (iii) Customer’s breach of any representation or warranty in this Agreement.
    2. Indemnification by Rockhopper. Rockhopper will indemnify, defend, and hold Customer and its Representatives harmless from and against any and all Losses incurred by any such parties in connection with any claim by a third party that the Platform infringes or misappropriates such third party’s intellectual property rights.
    3. Procedure. The indemnification obligations set forth in Section 11.1 and Section 11.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim; (ii) providing the indemnifying Party with sole control of the defense and settlement of the Claim (provided that the indemnifying Party may not settle any Claim without the indemnified Party’s prior written consent, which shall not be unreasonably withheld); and (iii) providing reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense.
12. GENERAL PROVISIONS.
    1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may assign this Agreement without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
    2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
    3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard for choice of law provisions thereof.
    4. Exclusive Forum. Subject to Section 12.5, below, the Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, Borough of Manhattan, for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement.
    5. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York, New York.
    6. Notices. All notices permitted or required by this Agreement shall be in writing, and shall be deemed to have been delivered and received (i) when personally delivered, (ii) on the third business day after mailing by registered or certified mail, return receipt requested, postage prepaid, or (iii) on the next business day after sending by overnight courier service.
    7. Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
    8. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will continue in full force and effect.
    9. Force Majeure. Except for Customer’s obligations to pay any Rates and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including acts of God, earthquakes, fires, floods, wars, terrorism, pandemics, epidemics, governmental orders, labor disruptions, or internet disturbances.
    10. Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
    11. Publicity. Customer hereby grants us a non-exclusive, royalty-free, worldwide license to utilize the name and logo of Customer on our Website, marketing materials, or any other public manner, without prior approval, to identify Customer as a customer of Rockhopper.
    12. Complete Understanding. This Agreement, together with the Order Form and all Exhibits and Appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.