Master Service Agreement
SAAS AGREEMENT
This Software as a Service Agreement (this “SaaS Agreement”) is made by and between Revolution RE, Inc. (“Revolution RE”), a Delaware C-Corp with offices at 2093 Philadelphia Pike #6591 Claymont, DE 19703 and the customer identified in the Order Form (defined below) into which this SaaS Agreement is incorporated (“Customer”, together with Revolution RE, the “Parties”, and each a “Party”), and is effective as of the date Customer signs the Order Form (“Effective Date”). The Parties agree as follows:
1. Definitions.
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party. For purposes of this definition, an entity “controls” another entity if it has the power to direct the management and policies of the other entity through ownership of more than 50% of the voting securities of an entity, representation on its board of directors or other governing body, or by contract.
“Agreement” means this SaaS Agreement together with the applicable Order Form into which this SaaS Agreement is incorporated.
“Authorized Users” means officers, directors and employees of: (i) Customer; or (ii) any Customer Affiliate that is expressly identified in the applicable Order Form.
“Customer Content” means all data, content, materials and information provided or made available to Revolution RE by Customer or any of its Affiliates or Authorized Users in connection with this Agreement. All Customer Data is included within the Customer Content definition.
“Customer Data” means the electronic data, content and other information that is: (i) entered into the Hosted Services by Customer, its Affiliates or Authorized Users for storing, processing or use by Revolution RE or the Hosted Services in connection with this Agreement; (ii) sent, transmitted, disclosed or made available to the Hosted Services or Revolution RE (or any of its Affiliates or representatives) by Customer, its Affiliates or Authorized Users for storing, processing or use by Revolution RE or the Hosted Services in connection with this Agreement; or (iii) sent, transmitted, disclosed or made available to the Hosted Services or Revolution RE (or any of its Affiliates or representatives) by third parties, or third-party platforms, APIs, SaaS solutions or technologies, in connection with Customer’s access to or use of the Services.
“Hosted Services” means Revolution RE’s data aggregation platform described on the Order Form.
“Order Form” means an order form, statement of work or ordering document that incorporates this Agreement by reference and that is executed by Revolution RE and Customer.
“Output” means the results or other output of the Hosted Services generated through Customer’s or its Authorized Users’ use of the Hosted Services (ex. reports).
“Professional Services” means all services set forth in the Order Form that are not Hosted Services. “Services” means Hosted Services and Professional Services.
2. Services.
2.1. Provision of Services.
(i) Use of Services by Customer Affiliates. Each Customer Affiliate expressly identified on the Order Form will be entitled to access and use the applicable Hosted Services in accordance with this Agreement and the Order Form; provided that Customer will remain responsible and liable to Revolution RE for the actions and omissions of each such Customer Affiliate (and each of their Authorized Users). Customer will ensure that all of its Affiliates comply with all of Customer’s representations, warranties, restrictions, obligations and covenants in this Agreement.
(ii) Access to Hosted Services. Subject to the terms and conditions of this Agreement, Revolution RE grants to Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable right to access and use the Hosted Services during the Term (defined below) solely for Customer’s internal business purposes. Customer may exercise its rights to access and use the Hosted Services set forth in this Section
2.1 solely and exclusively through its Authorized Users. Customer will not permit any party that is not an Authorized User to access or use the Services without Revolution RE’s prior written consent for each such party.
(iii) Output. During the Term, and subject to the terms and conditions of this Agreement, Revolution RE may make available Output to Customer via the Hosted Services. Subject to Customer’s ownership of any underlying Customer Data contained in such Output, Revolution RE will own such Output. Subject to the terms and conditions of this Agreement, Revolution RE hereby grants Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to reproduce Output and distribute Output internally to Authorized Users solely for Customer’s internal business purposes. Revolution RE may provide certain features and functionality via the Hosted Services that permit the download and/or other export of certain Output. Customer may utilize such features and functionality to download and/or export such Output in the format provided by Revolution RE. Customer will not, directly or indirectly, distribute, publish or otherwise make available any Output to any third party in a manner or frequency that permits or facilitates a third party’s receipt of the benefit of the Services without such third party entering into an agreement with Revolution RE for the provision of Services.
(iv) Upgrades and Modifications. Customer agrees that Revolution RE may remove, update, upgrade, enhance or modify the Services or any functionality thereof, at any time with or without notice, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the Services made available to Customer or Authorized Users by Revolution RE will automatically be considered part of the Services and will be subject to the terms and conditions of this Agreement.
(v) Suspension. Revolution RE may suspend or interrupt the provision of the Services, in whole or in part, at any time immediately upon notice to Customer if Revolution RE determines that: (i) Customer or Authorized Users are using or intend to use the Services in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of Customer has been compromised or unlawfully accessed; (iii) suspension of the Services is necessary to protect the infrastructure of Revolution RE or its Affiliates, the environment in which the Services are deployed, or Revolution RE’s other customers; (iv) suspension is required under law, rule or regulation; or (v) Customer has failed to pay Fees when due. All remedies in this Section 2.1(v) are in addition to, and not in lieu of, other remedies available to Revolution RE.
(vi) Customer Responsibilities. Customer is responsible for access to the Hosted Services and Customer Data by other persons as a result of Customer’s, or any of its Authorized Users’, failure to comply with the terms of this Agreement or failure to use reasonable precautions to secure its own systems or credentials for access to the Hosted Services. Customer will: (i) prevent all unauthorized access to or use of the Hosted Services via its own systems or credentials, and notify Revolution RE immediately of any such unauthorized access or use; and (ii) promptly deactivate the Hosted Services Authorized User account of any individual no longer tasked with the use of the Hosted Services. Customer will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, rule or regulation, to make the Hosted Services available to Authorized Users and for the collection, storage, use, disclosure and processing of Customer Data by Revolution RE as contemplated by this Agreement.
(vii) Authorized Users. Authorized Users may access and use the Hosted Services on behalf of Customer as permitted in Section 2.1(ii), provided that Customer will remain responsible and liable to Revolution RE for any and all acts or omissions of each Authorized User. Customer will ensure that all of its Authorized Users comply with all representations, warranties, restrictions, obligations and covenants of Customer in this Agreement.
(viii) Data Security and Privacy.
(1) During the Term, Revolution RE will maintain security measures designed to protect the integrity of, and to prevent unauthorized access to, the Hosted Services and Customer Data stored therein. Revolution RE may use, process, store and disclose Customer Data as set forth in this Agreement and as set forth in Revolution RE’s privacy policy set forth at https://www.revolutionre.com/, as may be amended by Revolution RE from time to time. Customer Data is encrypted in motion and at rest.
(2) If Revolution RE requires Customer Data from a third party, Revolution RE will request to receive only Customer Data that relates to Customer. If a third party provides Revolution RE with Customer Data that does not relate to Customer, Revolution RE will use reasonably efforts to expunge all Customer Data that does not relate to Customer. Upon request and subject to Revolution RE’s security and confidentiality policies, Revolution RE will provide a copy of its most recent SOC2 report to third parties that have or will disclose or make available Customer Data to Revolution RE.
(3) Upon written request from Customer, Revolution RE will delete Customer Data in accordance with Revolution RE’s Data Deletion Policy. Revolution RE shall be relieved and released from all obligations hereunder that are disrupted, delayed or prevented as a result from deletion of such Customer Data.
2.2. Customer Content. Customer hereby grants to Revolution RE an irrevocable, perpetual, non-exclusive, sublicensable, worldwide, royalty-free right and license to use, disclose, reproduce, distribute, modify, display, publish and prepare derivative works of Customer Content for the following purposes: (i) providing the Services to Customer; (ii) exercising Revolution RE’s rights in this Agreement; (iii) operating, analyzing and improving the Services for Customer; (iv) creating de-identified or anonymized data (“Anonymous Data”); and (v) as permitted in this Agreement or set forth in Revolution RE’s privacy policy, as amended from time to time. Revolution RE shall retain all right, title and interest, including all intellectual property rights, in and to such improvements, Anonymous Data, reports and derived data. Customer hereby irrevocably assigns to Revolution RE all right, title and interest, including all intellectual property rights, in and to all such improvements, Anonymous Data, reports and derived data. If Revolution RE does not own all right, title and interest in and to all such improvements, Anonymous Data, reports and derived data pursuant to the foregoing provisions of this Section 2.2, Customer hereby grants Revolution RE a perpetual, irrevocable, fully paid, royalty-free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import such improvements, Anonymous Data, reports and derived data, with the right to sublicense each and every such right, for any and all purposes.
2.3. Third-Party Data. Revolution RE may make available on or in connection with the Services certain data, content and information provided by third parties (“Third-Party Data”). All or some portions of Third-Party Data may be subject to separate third-party license agreements or terms, including open source license agreements. Notwithstanding anything to the contrary in this Agreement, such third-party license agreements govern Customer’s use of such Third-Party Data and control and supersede the terms of this Agreement to the extent of any conflict herewith, and Customer is solely responsible for its (and, for clarity, its Authorized Users’) compliance with all third party license agreement(s) or terms applicable to Third-Party Data, as may amended by such third parties from time to time. Revolution RE will provide Customer with such third party license agreements or terms and amendments thereto. To the extent expressly authorized in writing by a supplier of Third-Party Data, Revolution RE agrees to pass on to Customer the warranties provided to Revolution RE by such supplier with respect to such Third-Party Data.
2.4. General Restrictions. Customer will not, directly or indirectly, and will not permit any Authorized User or third party to: (i) use the Services, Output or Software (defined below) except as expressly permitted in this Agreement for Customer’s own internal business purposes; (ii) decompile, disassemble, or reverse engineer the underlying software to Hosted Services or Software (except to the extent this restriction is not permitted under applicable law); (iii) sell, resell, rent, license, lease, transfer, redistribute, assign or use the Hosted Services, Software or Output to any third party; (iv) remove, modify, or obscure any copyright or proprietary notices contained in the Hosted Services, Software or Output exported from the Hosted Services in the form a screenshot; (v) access, use or distribute the Hosted Services, Software or Output to circumvent or exceed account limitations or requirements; (vi) obtain unauthorized access to the Hosted Services or Software (including permitting access to or use of the Hosted Services via another system or tool, the primary effect of which is to enable input of requests or transactions by other than Authorized Users); (vii) use the Services, Software or Output in violation of any applicable law, rule or regulation; (viii) send, store, submit, publish, post, upload or otherwise transmit any data via the Services that (a) is unlawful or, in Revolution RE’s reasonable discretion, is otherwise objectionable or (b) contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (ix) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Hosted Services or Software; (x) interfere with or disrupt the integrity or performance of the cloud environment where the Hosted Services are deployed; (xi) disclose the results of any benchmarking test. Customer acknowledges and agrees that Revolution RE may monitor Customer’s and Authorized Users’ use of the Services; or (xii) save to the extent strictly necessary for the operation of the Hosted Services, send, store, submit, upload, enter or otherwise make available any Personal Data on or to the Hosted Services or to Revolution RE. “Personal Data” means any Customer Data relating to an identified or identifiable natural person. Customer will ensure that all of its Authorized Users and all parties that have access to Software under this Agreement comply with all representations, warranties, restrictions, obligations and covenants of Customer in this Section 2.4. All rights and licenses granted by Revolution RE in this Agreement are conditioned upon Customer’s compliance with all of its representations, warranties, restrictions, obligations and covenants in this Section 2.4.
2.5. Feedback. Customer may choose to or Revolution RE may invite Customer to submit general comments or ideas about the Services’ performance, including about how to improve the Services or Revolution RE’s products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Revolution RE under any fiduciary or other obligation, and that Revolution RE is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Revolution RE does not waive any rights to use similar or related ideas previously known to Revolution RE, or developed by its employees, or obtained from sources other than Customer.
2.6. Setup Services. Provider will perform implementation or customization services for the Services as specified in the applicable Order Form.
2.7. Technical Support. Revolution RE will provide Customer such technical support services as specified in the applicable Order Form.
2.8. Professional Services. Revolution RE may provide Professional Services that are set forth in the Order Form. Such Professional Services will be subject to additional fees above and beyond the fees to access and use the Hosted Services. Notwithstanding anything to the contrary herein or elsewhere, Revolution RE shall have no obligation to provide any Professional Services, or any other services, that are not expressly set forth in the Order Form.
3. Software.
3.1. License. In connection with the Services, Revolution RE may, directly or indirectly, deliver or otherwise make available certain APIs, software, computer code, scripts, or computer libraries or files (collectively, “Software”) to Customer or Authorized Users for the purposes of facilitating Customer and Authorized Users to send, transmit, disclose or otherwise make available Customer Data to the Hosted Services or Revolution RE. Revolution RE hereby grants to Customer and such Authorized Users to whom Revolution RE, directly or indirectly, delivers or makes available Software a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use Software internally during the Term for the sole purpose of sending, transmitting, disclosing or otherwise making available Customer Data to the Hosted Services or Revolution RE. For the avoidance of doubt, Revolution RE has no obligation to deliver or make available any Software under this Agreement. All licenses granted by Revolution RE in this Agreement are conditioned upon Customer’s and all Authorized Users’ compliance with Section 2.4.
3.2. EULA. Revolution RE, in its sole and absolute discretion, may require any or all of Customer and Authorized Users that access or use Software in connection with this Agreement to agree to additional terms and conditions governing the access and use of Software, whether by written contract, click-wrap, browse-wrap or otherwise (“EULAs”). Customer will ensure that all parties that access or use Software in connection with this Agreement at all times comply with all terms and conditions set forth in the EULAs. Customer will be liable and responsible for any such party’s breach of any term of any EULA.
3.3. No Warranty. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, ALL SOFTWARE IS PROVIDED “AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING WARRANTIES WITH RESPECT TO MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAW. REVOLUTION RE HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO SOFTWARE.
4. Term and Termination.
4.1. Effective Date and Term. This Agreement shall be in effect from the Effective Date and shall continue until the end of the initial term set forth in the Order Form (“Initial Term”), unless and until earlier terminated in accordance with the provisions set forth in this Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive twelve (12) month renewal periods (each a “Renewal Term”), and the Renewal Term, together with the Initial Term, the “Term”), unless either Party provides written notice of its intent to not renew this Agreement at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term and unless and until this Agreement is earlier terminated in accordance with the provisions set forth in this Agreement.
4.2. Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party: (i) if the other Party materially breaches this Agreement and such default has not been cured within thirty (30) days (or if such breach is Customer’s failure to pay Fees when due or breach of Section 2.4 or Section 3, within three (3) days) after written notice of such breach to the other Party; or (ii) if the other Party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (d) has wound up or liquidated, voluntarily or otherwise.
4.3. Effect of Termination. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 1, 2.2, 2.4, 2.5, 3.3, 4.3, 5, 6.3, 6.4, 6.5, 6.6, 7, 8, 9, 10, 12, 13, 14, 15 and any other provisions which by their nature should survive such termination or expiration. Upon any termination or expiration of this Agreement, (i) all unpaid Fees (defined below) under the terminated or expired instrument incurred up to the point of termination or expiration will become immediately due and payable; and (ii) Customer will immediately cease all use of the Services and Software. Nothing contained herein will limit any other remedies that either Party may have for the default of the other Party under this Agreement nor relieve either Party of any of its obligations incurred prior to such termination.
5. Payment.
5.1. Fees. In consideration of the Services provided by Revolution RE under this Agreement, Customer will pay Revolution RE the fees in the amounts set forth on the Order Form (the “Fees”) in accordance with the terms set forth herein and therein. Except as otherwise specified below or in the Order Form, the Fees for Services are due in advance on an annual basis and will be invoiced on or around the Effective Date and each anniversary thereafter during the Term, and each Authorized User beyond the number of users specified in the Order Form will incur an additional charge at the per-user Term price specified in the Order Form (prorated from the date of first use of the applicable Services by such Authorized User), which shall be paid in advance for the Term (and thereafter for each renewal term as if each such additional Authorized User were included in the number of Authorized Users specified in the Order Form), and Revolution RE will invoice Customer for such additional fees at the end of the month during which such first use occurred in accordance with the above).
5.2. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Revolution RE’s net income. If Revolution RE has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.2, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Revolution RE with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.3. Payment Terms. All amounts payable to Revolution RE under this Agreement will be due within thirty (30) days from the date of Customer’s receipt of the applicable invoice. Overdue payments that are not subject to a good faith dispute will be subject to interest at the rate of 1.5% per month, or the highest interest rate permitted by applicable law, whichever is less.
6. Representations and Warranties; Disclaimers.
6.1. Authority. Each Party represents and warrants that it has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated herein and therein, and that this Agreement is and will be executed by an authorized representative of such Party.
6.2. Performance Warranty. Revolution RE represents and warrants that it will provide the Hosted Services in material accordance with this Agreement and the descriptions and milestones in the Order Form (the “Performance Warranty”). If Revolution RE breaches the Performance Warranty, Revolution RE agrees to use commercially reasonable efforts to correct the Hosted Services in a manner that cause the Hosted Service to conform to the Performance Warranty. If Revolution RE is unable to correct such nonconformance after a reasonable period of time, Revolution RE shall provide Customer a pro-rata refund of amounts paid for the Hosted Services based upon the remaining days in the Term. The remedies set forth in this Section 6.2 are Customer’s sole and exclusive remedy, and Revolution RE’s sole liability, for any breach of the Performance Warranty.
6.3. Customer Warranties. Customer represents and warrants to Revolution RE that: (i) all Customer Content was and will be collected and made available to Revolution RE in accordance with all applicable laws, rules and regulations; (ii) Customer has obtained, and will obtain and maintain at all times, all Customer Consents; and (iii) Revolution RE’s access to or use of third-party platforms, APIs, SaaS solutions or technologies for the purpose of scraping, retrieving, receiving, downloading or accessing Customer Data (whether via representatives or “bots”) does not and will not violation any terms and conditions, or agreement to which Customer is a party, that govern access to or use of third-party platforms, APIs, SaaS solutions or technologies. “Customer Consents” means all licenses, consents, permits, permissions, approvals and authorizations that are necessary to allow Revolution RE and its Affiliates, and their respective directors, officers, employees, agents, contractors, subcontractors and representatives to (a) access, use, load, execute, store, transmit, display, publish, copy, maintain, modify, enhance, create derivative works, make, have made, disclose and distribute Customer Content as contemplated or permitted by this Agreement or as necessary to provide the Services or (b) access or use third-party platforms, APIs, SaaS solutions or technologies for the purpose of scraping, retrieving, receiving, downloading or accessing Customer Data.
6.4. Third-Party Materials. Revolution RE may use or provide Third-Party Data, software, software tools, servers, hardware and services licensed, leased or otherwise obtained by Revolution RE from a third party that are used in connection with the provision of Services (collectively, “Third-Party Materials”). Customer will be responsible for complying with the terms of any licenses, agreements, and terms and conditions related to Customer’s use of the Third-Party Materials. THE THIRD-PARTY MATERIALS ARE PROVIDED “AS-IS” and “AS-AVAILABLE”. REVOLUTION RE WILL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM RELATED TO THIRD-PARTY MATERIALS.
6.5. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (I) REVOLUTION RE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) THE PARTIES AGREE THAT THE SERVICES (INCLUDING THIRD-PARTY DATA AND THIRD-PARTY MATERIALS) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” REVOLUTION RE MAKES NO OTHER WARRANTY AS TO THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE ARE CERTAIN RISKS INHERENT TO THE PARTIES’ ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND REVOLUTION RE’S PROVISION OF, THE SERVICES MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SERVICES AND OUTPUT IS INTENDED TO BE INFORMATIVE, AND SHOULD NOT BE CONSTRUED AS ADVICE OR RECOMMENDATIONS. NO ACTION SHOULD BE TAKEN BASED UPON ANY INFORMATION CONTAINED IN THE SERVICES OR OUTPUT.
6.6. Pilot Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IF THE ORDER FORM PERMITS CUSTOMER TO USE THE SERVICES FOR A “PILOT” OR “TEST” PERIOD, DURING SUCH “PILOT” OR “TEST” PERIOD, THE SERVICES ARE PROVIDED “AS-IS” “AS-AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND AND REVOLUTION RE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Confidential Information. From time to time before or during the Term, either Party may disclose or otherwise make available to the other Party nonpublic or proprietary information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Revolution RE may disclose or make available Confidential Information directly or indirectly through its Affiliates or other Representatives (defined below) and all such disclosures shall be deemed disclosures by Revolution RE of its Confidential Information. Confidential Information shall not include information which: (i) was already known to receiving Party at the time of disclosure by disclosing Party, and receiving Party was under no obligation of confidentiality with respect to such information; (ii) is disclosed to receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of receiving Party has become, generally available to the public; (iv) is independently developed by receiving Party without access to, or use of, disclosing Party’s Confidential Information; or (v) is Customer Data. Each receiving Party shall protect and keep confidential the other Party’s Confidential Information using at least the same degree of care that such receiving Party uses to protect its own Confidential Information (but in no event less than a reasonable degree of care). Each receiving Party will refrain from all uses of the other Party’s Confidential Information, except for uses expressly permitted in this Agreement and uses required for receiving Party to perform its obligations or exercise of its rights under this Agreement. Each receiving Party shall not disclose or make available the disclosing Party’s Confidential Information to any person or entity, except to employees, officers, directors, agents or contractors of receiving Party or receiving Party’s Affiliates (“Representatives”) who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality obligations at least as restrictive as those set forth herein. Each receiving Party will ensure that its Representatives comply with all of such receiving Party’s obligations in this Section 7. Each receiving Party will be liable for any breach of this Section 7 by, or caused by, its Representatives. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Each Party will return or destroy all Confidential Information upon request and certify to the other Party in writing such return or destruction.
8. Limitation of Liability.
8.1. Consequential Damages Waiver; General Liability Limitation. IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AS CONSEQUENTIAL DAMAGES), EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY OR ITS RESPECTIVE AFFILIATES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT IN THE AGGREGATE EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO REVOLUTION RE UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE OR LIABILITY. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 8.1 SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
8.2. Excluded Claims. THE PROVISIONS OF SECTION 8.1 SHALL NOT APPLY TO DAMAGES AND LIABILITIES THAT ARISE FROM: (I) CUSTOMER’S BREACH OF SECTION 2.4 OR SECTION 3; (II) EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIAL INFORMATION); (III) EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION) OR BREACH THEREOF; (IV) THE GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF EITHER PARTY OR ITS AGENTS; OR (V) ANY OTHER LIABILITY TO THE EXTENT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW; PROVIDED THAT WITH RESPECT TO THIRD-PARTY DATA, REVOLUTION RE’S AGGREGATE LIABILITY WILL IN NO EVENT EXCEED THE AMOUNTS ACTUALLY RECOVERED BY REVOLUTION RE RELATING TO THE CLAIM FROM THE APPLICABLE THIRD-PARTY DATA SUPPLIER. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, REVOLUTION RE’S TOTAL CUMULATIVE LIABILITY WITH RESPECT TO ITS INDEMNIFICATION, DATA PROTECTION, SECURITY, AND CONFIDENTIALITY OBLIGATIONS SHALL NOT IN THE AGGREGATE EXCEED THE GREATER OF THREE (3) TIMES THE FEES PAID TO REVOLUTION RE UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS OR TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000). EACH PARTY ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Indemnification.
9.1. Revolution RE Indemnification of Customer. Revolution RE will indemnify, defend and hold Customer and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all claims, actions, causes of action, investigations, lawsuits, litigation and proceedings initiated by a third party (“Claims”), and all awards, damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) (“Losses”) incurred by Customer as a result of such Claims, to the extent the Claims arise out of or relate to a claim that the Hosted Services infringe a third party’s U.S. intellectual property rights.
(i) Revolution RE Options. If a Claim is brought that is subject to indemnification under this Section 9.1, or if Revolution RE reasonably determines in its discretion that such Claim is likely to be made, Revolution RE may, at its option, (a) replace or modify the Hosted Services so the Hosted Services are no longer infringing but is functionally equivalent without material adverse impact on Customer, or (b) obtain for Customer the right to continue using the Hosted Services. If Revolution RE determines that neither (a) nor (b) is commercially practicable, then Revolution RE may terminate Customer’s right to use the infringing Hosted Services, in which event Customer shall receive, as its sole and exclusive remedy, a pro-rata refund of amounts paid for the Hosted Services based upon the Term.
(ii) Exclusions. Revolution RE’s obligations under this Section 9.1 will not apply to any Claims or Losses subject to indemnification under Section 9.2 or arising from or related to: (a) modification of the Hosted Services by, or at the request of, any party other than Revolution RE; (b) Customer Data, Customer Content, Third-Party Materials or Third-Party Data; (c) the combination of the Hosted Services with any item, technology, SaaS offering, data, website, content or material not supplied by Revolution RE; (d) the use of the Hosted Services in violation of this Agreement or Customer’s breach of this Agreement; (e) use of the Hosted Services where such infringement or misappropriation could have been avoided by use of subsequent Hosted Services provided by Revolution RE and Revolution RE has notified Customer in writing of a need to update the Hosted Services; or (f) Hosted Services provided under a “test” or “pilot” arrangement.
(iii) Sole Remedy. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, REVOLUTION RE’S OBLIGATIONS UNDER THIS SECTION 9.1 ARE REVOLUTION RE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9.2. Customer Indemnification of Revolution RE. Customer will indemnify, defend and hold Revolution RE, its Affiliates, and its and their respective directors, officers, employees, agents, successors and permitted assigns harmless from and against any and all claims, actions, causes of action, investigations, lawsuits, litigation and proceedings (whether direct by Customer or initiated by a third party), and any and all awards, damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs, and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) (”Revolution RE Losses”), whether such Revolution RE Losses are first-party or third-party, that allege, are based upon, arise out of or relate to: (i) Customer’s or any Authorized User’s actual or alleged breach of this Agreement or any EULA or third party license agreement governing access and use of Third-Party Data; (ii) Customer Content or Revolution RE’s access to, or use or disclosure, thereof; (iii) Customer’s or any Authorized User’s actual or alleged gross negligence or more culpable conduct; (iv) Customer’s or any Authorized Users’ violation of any law, rule or regulation; or (v) access to or use of any third-party platform, API, SaaS solution or technology by or on behalf of Revolution RE or any of its Affiliates or representatives for the purpose of scraping, retrieving, receiving, downloading or accessing Customer Data. Customer shall not enter into any settlement or compromise in connection with any claim subject to indemnification under this Section 9.2 that requires Revolution RE or any other indemnified party under this Section 9.2 to admit wrongdoing or liability, make any payments, comply with any ongoing affirmative obligations or comply with any restrictive covenants.
10. Ownership. Except for the limited rights expressly granted to Customer in this Agreement and EULAs, Revolution RE retains all right, title and interest (including all intellectual property rights) in and to the Services (including all updates, upgrades, enhancements or modifications to or of the Services), Software (including all updates, upgrades, enhancements or modifications to or of Software), all software and technology underlying the Services, all Revolution RE documentation relating to the Services, and all software, code, information, data, content, works of authorship, inventions and processes created, developed, conceived, fixed to a tangible medium, licensed or provided by Revolution RE in whole or in part (collectively, “Revolution RE Materials”). Title to and ownership of any Revolution RE Materials created by Revolution RE in the course of providing Services (including all intellectual property rights) shall be held exclusively by Revolution RE, whether such Revolution RE Materials were requested by or on behalf of Customer or incorporate ideas, feedback or comments provided by or on behalf of Customer. Customer will not acquire any rights in or to the Revolution RE Materials by implication, estoppel or otherwise. Customer hereby irrevocably assigns to Revolution RE all rights, title and interest (including all intellectual property rights) in and to the Revolution RE Materials.
11. Compliance with Laws. Each Party shall comply with all laws and regulations applicable to it, including applicable export and re-export control and trade and economic sanctions laws, which include the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither Party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (i) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (ii) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.
12. Publicity. Neither Party may use the other Party’s name, logo or marks without such other Party’s written pre-approval; provided, however, Revolution RE may refer to Customer on its customer lists, website, and other marketing materials as a customer of Revolution RE.
13. Audit Right. Revolution RE has the right to verify Customer’s compliance with this Agreement. Customer agrees to: (i) keep records relating to Authorized Users’ and, upon Revolution RE’s request, provide Revolution RE with written clarification of the number of, with reference to the Order Form providing authorization for, Customer’s current Authorized Users; (b) permit Revolution RE representatives to inspect and audit Customer’s computers, networks, systems and records for the purpose of confirming Customer’s compliance with the terms of this Agreement. Customer shall fully cooperate with any such inspection and audit and provide all necessary assistance and access to all computers, networks, systems and records. If an audit reveals Customer currently has, or at any time, permitted unauthorized access beyond that defined in the Order Form(s), Customer shall promptly acquire the sufficient license(s) to cover any shortage. Revolution RE’s rights and remedies under this Section 13 are cumulative and in addition to all other rights available to it at law and in equity.
14. Changes to SaaS Agreement. Revolution RE may amend this Agreement from time to time by posting an amended version of this SaaS Agreement at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Revolution RE written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Renewal Term following the Proposed Amendment Date. Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party. Customer recognizes and agrees that Revolution RE may revise its privacy policy at any time in its sole discretion, with or without following the procedures of this Section 14.
15. Miscellaneous. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever. Customer may not assign this Agreement without Revolution RE’s prior written consent, except that Customer without such consent may assign this Agreement to an entity that acquires all or substantially all of Customer’s voting securities or assets. Non-permitted assignments are void. All provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against, the respective successors and permitted assigns of Revolution RE and Customer. This Agreement is governed by the laws of the State of California without reference to its principles of conflicts of laws and without regard to the United Nations Convention on the Sale of Goods. Any dispute, controversy or claim arising out of, or relating to, this Agreement, or the existence, validity, breach, or termination hereof, whether during or after its term, shall be submitted for resolution in the Federal or state courts in Los Angeles, California; and the Parties hereby irrevocably consent to the jurisdiction of such courts. Notwithstanding the foregoing, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority of competent jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY INANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONSCONTEMPLATED HEREBY. Any notice or consent under this Agreement will be in writing to Revolution RE’s address set forth above or Customer’s address set forth in the Order Form, as applicable. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the Parties’ intended purpose. In this Agreement, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation. Waivers must be signed by the waiving Party and one waiver will not imply any future waiver. Neither Party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment of fees due hereunder) if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, pandemics, riots, or failures or delays in transportation or communications. This Agreement is the Parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied and is not relying on any representations, warranties or other statements from or by Revolution RE or any of its Affiliates or Representatives, whether written or oral, other than those expressly set forth in this Agreement (or other related documents expressly referred to herein) and that it will not have any right or remedy rising out of any representation, warrantyor other statement not expressly set forth in this Agreement. Notwithstanding any language to the contrary therein, any purchase order issued by Customer shall be deemed a convenient order and payment device only and no terms stated in any such purchase order or in any other such order document shall be incorporated into this Agreement, and all such terms shall be void and of no effect. This Agreement may be signed in counterparts, each of which will be deemed an original and which will together constitute one Agreement. Electronic signatures are valid and binding. Except for exclusive remedies expressly set forth in this Agreement, each Party’s rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. Except for indemnified parties expressly set forth in this Agreement, (i) this Agreement is entered into solely between, and may be enforced only by, Customer and Revolution RE, and (ii) this Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties.
