This Terms of Service (“TOS”) contains the exclusive terms and conditions between Raydiant, Inc. (“we,” “us,” “our” or “Company”), a Delaware corporation and You, the customer specifically identified in the order form referencing this TOS (“You”, “you”, “your”), regarding access and use of the Services. The terms “You”, “you” and “your” will refer to you, your heirs, and assigns, and the organization you represent, including its subsidiaries and affiliates, and their respective officers, directors, employees and agents. By accessing, using, purchasing or registering for the Services, you are agreeing to these terms for yourself and the organization you represent, and representing to Raydiant that you have the authority to bind that organization (in which case, the terms “You”, “you” and “your” will refer to that organization) under all applicable laws. ONCE ACCEPTED, THESE TOS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND RAYDIANT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TOS, YOU SHOULD NOT ACCESS, USE, PURCHASE OR REGISTER FOR RAYDIANT SERVICES.
Pursuant to this TOS, you may order from Raydiant licenses to access and use Raydiant’s Services. The specifics of each order will be set forth on a written or electronic order form, quote and/or invoice (each, an “Order Form”) provided by Raydiant or made available on the Raydiant website. Terms not defined below shall have the meaning given to them in the Order Form.
- Modifications to the TOS.Raydiant reserves the right to modify the TOS, at any time and without prior notice (except with respect to Section 15 governing arbitration). We will post modifications on the Services and/or use other means to notify you. By continuing to access or use the Services, you are agreeing to be bound by the modified TOS.
- Registration.You may only register for the Services if you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You will be required to create an account with an email and a password. You agree to provide accurate, current and complete information during registration and at all other times when you use the Services. We reserve the right in our sole discretion to refuse to keep accounts for, or provide services to, any individual or organization. You may not share your account credentials with any individual who is not an authorized user. You are responsible for safeguarding your password.
- The Services.The Raydiant Services include a proprietary software application to be hosted and made available by Raydiant on a software-as-a-service basis and technology through which digital feeds, apps, and content created and provided by you or third parties (the “Digital Displays”) can be hosted and displayed (collectively, the “Services”). The Services may also contain links, text, graphics, images, audio, video, information, code, or other materials provided by Raydiant (“Raydiant Content”). Raydiant does not guarantee that any parts of the Services will be available at all times, and Raydiant may change, update, or discontinue the Services without notice to you.
- Digital Displays; Third Party Content.You expressly agree and acknowledge that you will not hold Raydiant responsible for the Digital Displays or any other third-party content created by you or third parties that may be hosted or displayed on or through the Services, and you agree to indemnify and hold Raydiant harmless from and against any claims or damages arising out of or resulting from the Digital Displays or any other third-party content. Raydiant does not review or guarantee the existence, quality, or legality of the Digital Displays; the truth or accuracy of Digital Displays; or that Digital Displays will not contain offensive content. Raydiant does not guarantee that any parts of the Services will be available at all times, and Raydiant may change, update, or discontinue the Services without notice to you.
- Intellectual Property.You acknowledge that the Services and Raydiant Content are the proprietary intellectual property of Raydiant or its licensors. The Services are protected by copyright, trademark, and other laws. Except as expressly provided in these TOS, Raydiant and its licensors exclusively own all right, title, and interest in and to the Services and Raydiant Content, including all associated intellectual property rights. We grant you (and to the extent applicable, your employees or individual contractors acting for your exclusive benefit) a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Services solely for your internal business purposes and as permitted by these TOS.
Your use of the Services is governed by these TOS, and you agree not to: (i) rent, lease, sublicense, distribute, resell, transfer, copy, modify, create derivative works of , publicly display, publicly perform, transmit, stream, broadcast or time-share the Services commercially exploit, or make the Services available to any third party, in whole or in part, (iii) except to the limited extent any of the following are expressly prohibited by law, decompile, disassemble, reverse-compile, reverse-assemble or otherwise reverse-engineer (or otherwise use any similar means to discover the source code of) any aspect of the Services (including Raydiant Content), (iv) permit anyone else to do any of the foregoing, or (v) otherwise use the Services and any Raydiant Content in any way that is not expressly permitted by this TOS.
All trademarks, service marks, logos, trade names and any other proprietary designations of Raydiant used herein are trademarks or registered trademarks of Raydiant. If you choose to provide feedback, comments and suggestions for improvements to the Services or otherwise (“Feedback”), you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback.
You hereby grant Raydiant the right to use data and information we collect from the Services (but only in an aggregate or compiled form) which we may use to improve the products and services we offer, and to improve the overall experience of the Services. No rights or licenses are granted to you other than the express rights granted in these TOS.
- Confidentiality. “Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, Customer Content (as defined in Section 7), performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under these TOS. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
- Your Responsibilities. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Services (“Customer Content”). You, not Raydiant, own Customer Content and are solely responsible for the quality and legality of your Customer Content.
You acknowledge that the Service may integrate with one or more third party data providers (each, a “Third Party Provider”) and you are solely responsible for the following: (a) having Internet access and an active Third Party Provider account, if applicable, in order to use the Services (and for all costs in connection with such access); (b) ensuring that all registration and account information and data are current and accurate and that you have backed-up all such information; (c) managing all account activity; (d) maintaining the confidentiality and security of your username, password and account information; and (e) securing all consents and permissions to enable you to maintain your Third Party Provider accounts, if applicable, and to allow Raydiant to access the data in such Third Party Provider accounts.
- Fees.We may offer subscriptions or other offers (e.g., free trials), containing different options and features. You agree to pay the usage fees set forth in your Order Form, as applicable, and any applicable taxes. We may change the fees and charges in effect, or add new fees and charges from time to time. We may let you pay amounts due under these TOS in arrears. If we do, you will make all of the payments due hereunder in US dollars within 30 days of the date of payment due date. Payment obligations can’t be canceled and fees paid are non-refundable.
If at any time you are overdue on your account, Raydiant may suspend your access to the Services and/or terminate these TOS, and in any such case we are not responsible for maintaining your account data or your Customer Content. Unless you have filed a fee dispute, if you are overdue on payment and fail to pay within ten (10) days of the payment due date, then at our sole discretion we may (i) assess and you must pay a late fee of either 1.5% per month, or the maximum amount allowable by law, whichever is less and (ii) suspend our Services to you until you pay the amount you are overdue plus any applicable fees. If you fail to pay any unpaid and due amounts within fifteen (15) days of the payment due date, we may terminate your account. If you fail to pay any unpaid and due amounts within thirty (30) days of the payment due date, we may send your delinquent accounts to collections. Upon payment of all unpaid and due amounts within thirty (30) days of the payment due date, including any applicable fees, Service will be restored at your option. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this TOS. You must provide that written notice to us within 60 days of the applicable charge and we will work together with you to resolve the applicable dispute promptly.
In the event that you exceeded the quantity of licenses specified in any Order Form, Raydiant will invoice you, and you shall pay Raydiant, for such additional licenses at the same per-license fee set forth in the Order Form, adjusted on a pro rata basis for the then-remaining portion of the current Subscription Term.
You (i) represent and warrant to Raydiant that such information is true and that you are authorized to use the payment instrument and (ii) hereby authorize Raydiant to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
- Subscription Term; Termination. The period of these TOS will commence on the date they are accepted by you and continue for a period of time depending on the Services you have selected (the “Initial Period”). Unless otherwise set forth in the Order Form, the Subscription Term shall automatically renew for successive periods equal to the term specified in the Order Form at the prices published by Raydiant applicable to such successive periods or as otherwise set forth in the applicable Order Form, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the conclusion of the then–current term. Any such renewal shall be based upon the total of all initial and additional licenses that have been added to the Service during the preceding Subscription Term.
You have the right to terminate these TOS at any time during the Subscription Term in the event that Raydiant has materially breached these TOS and does not cure such breach within thirty (30) days following notice from you. Raydiant reserves the right to (i) modify or discontinue, temporarily or permanently, the Services (or any part thereof) and (ii) refuse any and all current and future use of the Services, suspend or terminate your account (any part thereof) or use of the Services and remove and discard any Customer Content in the Services if Raydiant believes that you have violated these TOS. Raydiant shall not be liable to you or any third party for any modification, suspension or discontinuation of the Services. Raydiant will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Raydiant. All Customer Content on the Services (if any) may be permanently deleted by Raydiant thirty days after any termination of your account in Raydiant’s sole discretion. Except as provided in this Section 10, all fees paid are non-refundable and non-cancelable.
- Rules of Conduct.You expressly agree not to do any of the following in using the Services: (a) send communications which are unlawful, threatening, abusive, harassing, defamatory, vulgar, obscene, offensive, libelous, or that may invade another’s right of privacy or publicity; (b) utilize the intellectual property of any other person or entity without their prior and explicit written permission; (c) violate any law, rule or regulation or advocate any activity that does so; (d) solicit funds, goods, or services (including, but not limited to, sweepstakes, contests or pyramid schemes); (e) transmit viruses or corrupted data or otherwise burden or interfere with the operation of the Services or any other party’s site or service; (f) adapt or hack the Services to, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (g) collect or store user names, email addresses or any other personally identifiable information about any user without their explicit permission and in all cases in compliance with applicable laws and regulations; (h) develop a competing product or service; (i) use or access the Service by any means other than through the interface that is provided or authorized by Raydiant; (j) transmit any content or engage in any action that violates our or a third party’s rights or any law; (k) transmit any communication designed or intended to obtain others’ private information; (l) send any solicitation materials; (m) impose an unreasonable load on our infrastructure; (n) interfere with the working of the Services; or (o) impersonate another person.
- Customer Breach. You are in breach of these TOS if you (a) fail to meet your material obligations, including any nonpayment of Fees as stated in Section 9, under these TOS; or (b) file or initiate proceedings or have proceedings filed or initiated against you, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law. Upon your breach, Raydiant may suspend or terminate Raydiant’s performance and obligations to you and without any notice or further liability to you, under these TOS. Upon your breach, you further agree to pay Raydiant liquidated damages equal to one hundred and twenty US dollars ($120) per each Digital Display or RaydiantScreenRay utilized through the Services and under this TOS. You agree and acknowledge that a breach by you of your obligations hereunder will cause irreparable harm to Raydiant. Accordingly, you agree and acknowledge that the remedy at law for a breach of your obligations under these TOS will be inadequate and agree, in the event of a breach or threatened breach by you, that Raydiant shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required.
- Representations and Warranty Disclaimers.Each party represents and warrants that it has full power and authority to enter into these TOS. Raydiant represents and warrants that it will perform the Services in a professional and workmanlike manner. THE SERVICES AND RAYDIANT CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. WE EXPLICITLY DISCLAIM ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES RELATED TO THIRD-PARTY CONTENT, EQUIPMENT, MATERIAL, WEBSITES, SERVICES OR SOFTWARE. WE MAKE NO WARRANTY THAT THE SERVICES OR RAYDIANT CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTIES REGARDING ANY CONTENT TRANSMITTED THROUGH THE SERVICES, OR THAT SUCH CONTENT WILL BE FREE OF OBJECTIONABLE OR ILLICIT CONTENT. NO INFORMATION OBTAINED FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- Limitations.YOU UNDERSTAND AND AGREE THAT UNDER NO LEGAL THEORY SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES INCLUDING THE RAYDIANT CONTENT. OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES THAT GAVE RISE TO THE LIABILITY DURING THE 12 MONTHS PRECEDING THE CLAIM.
- Indemnification.You agree to defend, indemnify, and hold Raydiant harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with your access to or use of the Services and/or the Raydiant Content, your breach of any law or the rights of a third party, or your violation of these TOS.
- Dispute Resolution and Binding Arbitration.If you have any dispute with us, you agree that before taking any formal action, you will contact us, and provide a written description of the dispute and your contact information. The parties agree that good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Except as provided herein, if we cannot resolve a dispute informally, any dispute will be resolved only by binding arbitration in San Francisco, CA or another location that we have both agreed to. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated (see www.jamsadr.com) (referred to as the “JAMS Rules”) and under the rules set forth in this TOS. If there is a conflict between JAMS Rules and the rules set forth in this TOS, the rules set forth in this TOS will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL.You may seek any and all remedies otherwise available to you pursuant to your state’s law. If you decide to initiate arbitration on behalf of the legal entity you represent, you will be required to pay the arbitration initiation fee as well as any additional deposit required by JAMS. You also agree to pay the costs of the arbitration proceeding. Other fees will be paid in accordance with JAMS Rules. The arbitrator shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these TOS including but not limited to any claim that all or any part of these TOS is void or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any competent court. Notwithstanding the foregoing, either party may bring claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its IP rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. Both parties agree that any claims or controversies must be brought against each other on an individual basis only. That means neither you nor we can bring a claim as a member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Raydiant customers, and cannot be used to decide other disputes with other customers.
- General Provisions.You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any requirement that such communications be in writing. You may not assign your rights or obligations under or transfer these TOS without our prior written consent. We may assign or transfer these TOS without restriction. Subject to the foregoing, these TOS will bind and inure to the benefit of the parties, their successors and permitted assigns. You agree to comply strictly with all applicable domestic and international laws and economic sanctions regulations. You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list. We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including without limitation any acts of God. These TOS supersede all prior and contemporaneous proposals, statements, and agreements, oral and written. If any provision of the TOS is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible by law, and the other provisions of the TOS will remain in force. Our failure to exercise or enforce any right or provision shall not constitute a waiver of such right or provision unless acknowledged and agreed by us in writing. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the TOS. These TOS shall be governed by the laws of California regardless of any conflicts of law principles. Except for claims that must be arbitrated, all claims must be resolved exclusively by a state or federal court located in the Northern District of California. Upon termination or expiration of your account or these TOS more generally, all accrued rights to payment and the terms of the following Sections will survive: 3-9 and 11-16.
- Contacting Raydiant.If you have any questions, please contact us at email@example.com.