This Software Hosting Services Agreement (“Agreement”), is made as of the Order Date of the service, by and between RURO, INC. (“RURO”), and the ordering party (“Customer”).
- Customer Responsibilities
- Service Levels
- Technical Support
- Term & Termination
- Disclaimers of Warranties
- Limitation of Damages
- Confidential Information
- Data Ownership: Loss
- Force Majeure
- U.S. Export Controls
- For Service Users Outside of the United States
RURO will provide Customer with use of the hardware and software set forth above and the support services set forth in this Agreement (collectively, the “Services”), solely for the purpose of hosting FreezerPro®, FreezerPro® Enterprise, ezColony®, ezColony® Enterprise, LimitLIS®, Limfinity®, or LIMS 24/7® software when purchased by the Customer. RURO reserves the right to modify any Service from time to time; provided that Customer may terminate a Service without penalty in the 30 days following notice from RURO of the implementation of any change to a Service that has a material adverse affect on the functionality of that Service, if RURO fails to correct the adverse effect in the 30 days following Customer’s written notification to RURO of such effect. RURO, its affiliates or subcontractors may perform some or all of RURO’s duties and/or obligations hereunder.
2. Customer Responsibilities
Customer is responsible for establishing and maintaining its Internet connection necessary to access and use the Services. All use of the Services must comply with the software use policies established by RURO and posted on the RURO’s website located at URL: https://web.ruro.com/about/legal-compliance (the “Policy”). RURO reserves the right to amend the Policy from time to time, effective upon posting of the revised Policy at the URL or other notice to Customer. RURO reserves the right to suspend the Services or terminate this Agreement effective upon notice for a violation of the Policy. At RURO’s request, Customer agrees to defend, indemnify and hold harmless RURO from any losses, damages, costs, liabilities or expenses resulting from any third party claim or allegation (“Claim”) arising out of, or relating to, use of the Services, including any Claim which, if true, would constitute a violation of the Policy.
3. Service Levels
Except as otherwise provided in Section 4 below, RURO will use commercially reasonable efforts to make the Services available in accordance with prevailing hosting industry standards, taking into account the Customer’s workstations and the speed of their connection to the RURO’s hardware (the “Technical Standards”). RURO will use commercially reasonable efforts under the circumstances to remedy any interruptions, omissions, mistakes, accidents or errors in the Services (hereinafter “Defects”) and restore the Services substantially in accordance with the Technical Standards. If the Services fail to substantially conform to the Technical Standards over a continuous period of thirty (30) days after written notice to RURO of such nonconformity, Customer may terminate Services, provided that the Defect is not caused or contributed to, directly or indirectly, by any act or omission of Customer or its customers, affiliates, agents, representatives, invitees or licensees, other than normal use of the Services in accordance with the Policy. In the event Customer terminates Services under this section, RURO shall only refund payment for any full years remaining on a multi year agreement. This Section 3 sets forth Customer’s sole remedies for any claim relating to the Services, including any failure to meet any guarantee set forth herein. RURO’s records and data shall be the basis for all service level calculations and determinations.
4. Technical Support
RURO’s Support shall be available via email, online chat, and Web interface during the hours of 9:00 a.m. to 5:00 p.m., Eastern Time, Monday through Friday, excluding United States federal holidays. Customer acknowledges and agrees that RURO will provide all server-side installation, customization, setup and support, and that neither Customer nor any third party engaged by customer shall be permitted to provide such services.
5. Term & Termination
The initial term of this Agreement shall commence on the Effective Date and shall continue for the period specified above as the “Initial Term.” Upon expiration of an Initial Term, this Agreement shall automatically renew for additional terms of one (1) year each (each a “Renewal Term”), at RURO’s option, unless Customer provides RURO with written notice of its intent not to renew no later than sixty (60) days prior to the end of the Initial Term or then-current Renewal Term. Payment for the Renewal Term shall be made by Customer prior to expiration of the current agreement. RURO shall notify Customer in writing of any change in the fees for this agreement at least 90 days prior to expiration of the current agreement. In addition, RURO shall have the right to terminate this Agreement immediately, in the event that Customer ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
Customer agrees to the fees for the Services as set forth above. All payments for fees shall be made in U.S. Dollars. All fees for the Services shall be paid in advance upon ordering the Service. In the event Customer fails to pay an invoice within 30 days of invoice date, RURO may issue a notice of default, and may discontinue the Services and/or terminate this Agreement in the event Customer has not fully paid all invoices within seven (7) days of the default notice. Customer agrees to pay RURO its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under this Agreement.
7. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3 ABOVE, RURO (a) MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING, AND (b) DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
RURO exercises no control over and accepts no responsibility for the content of the information passing through the Services. RURO specifically denies any responsibility for the accuracy or quality of information obtained through the Services. Use of any information obtained via the Services is at Customer’s own risk.
8. Limitation of Damages
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL EITHER PARTY OR ANY OF RURO’S SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST REVENUE, OR LOST DATA), NOR SHALL RURO’S SUPPLIERS OR LICENSORS BE LIABLE FOR DIRECT DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL RURO’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE) EXCEED THE LESSER OF $100,000 OR THE AMOUNTS PAID TO RURO FOR THE SERVICES GIVING RISE TO A CLAIM IN THE TWELVE MONTHS PRECEDING THE DATE OF SUCH CLAIM.
Customer agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with the Services and that the fees payable under this Agreement have been calculated on the basis that RURO shall exclude liability as provided in this Section.
9. Confidential Information
Commencing on the date Customer executes this Agreement and continuing for a period of three (3) years from the termination of this Agreement, each party shall protect as confidential, and shall not disclose to any third party without the disclosing party’s written consent, any Confidential Information received from the disclosing party or otherwise discovered by the receiving party during the term of this Agreement, including, but not limited to, the pricing and terms of this Agreement, and any information relating to the disclosing party’s technology, business affairs, marketing or sales plans, and any non-public information regarding the performance of the Services (collectively the “Confidential Information”). The parties shall use Confidential Information only for the purpose of this Agreement and shall only disclose Confidential Information to affiliates, employees, subcontractors or advisors under a similar obligation of confidentiality. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (i) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (ii) is, or becomes publicly known, through no wrongful act or omission of the receiving party; (iii) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (iv) is developed independently by the receiving party without reference to the Confidential Information, or (v) is required to be disclosed by law, regulation, or court or governmental order, however, the party subject to such law, regulation or court or governmental order shall use reasonable efforts to minimize such disclosure and shall notify the other party contemporaneously of such disclosure.
10. Data Ownership: Loss
All data created or transmitted by Customer and stored on RURO’s servers as part of the Services (“Customer Data”) shall at all times be owned by Customer. Except as instructed by Customer directly or through instructions provided to the servers through Customer’s use of RURO’s Software, RURO shall treat Customer Data as Confidential Information. Upon termination or cancellation of this Agreement for any reason, RURO shall return all Customer Data to Customer in the file format used by the RURO’s Software. As a convenience for Customer, RURO shall perform a regular (daily) backup of all Customer Data, but RURO shall in no event be liable to Customer or any third party for loss, destruction or corruption of Customer Data. Customer agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of Customer Data and that the fees payable under this Agreement have been calculated on the basis that RURO shall exclude liability as provided in this Section.
All access to the Services shall be controlled by user names and passwords issued by RURO to Customer as well as created by Customer. Each user name and password will be unique to each staff member that Customer designates is authorized to access the Services. Customer is solely responsible for the security of the user names and passwords issued to Customer’s staff members. Any access to the Services using such user names and passwords will be deemed access by Customer, except where access is the result of unauthorized disclosure of user names and passwords by the negligent or willful act of RURO. Upon request by Customer, RURO will either (i) obtain and install a digital secured server certificate for Customer or (ii) install a digital secured server certificate provided by Customer.
12. Force Majeure
RURO shall not be deemed to be in default of any provision of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond RURO’s reasonable control.
13. U.S. Export Controls
You agree to abide by U.S. and other applicable export control laws and not to transfer from the U.S., by electronic transmission or otherwise, any Content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization.
14. For Service Users Outside of the United States
THE SERVICE IS PROVIDED BY RURO INC. AND IN EUROPE, RURO INTERNATIONAL. THE PERSONAL INFORMATION WHICH YOU GIVE RURO WILL BE USED TO ESTABLISH YOUR ACCOUNT (WHETHER A TRIAL ACCOUNT OR OTHERWISE) AND WILL BE TRANSFERRED TO AND MAINTAINED IN RURO’ RECORDS IN THE UNITED STATES. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE RURO’S SOFTWARE HOSTING SERVICES.
RURO reserves the right to use the Customers name in its marketing and promotional materials, otherwise neither party may use the other party’s name, trademarks, trade names, or other proprietary identifying symbols, or issue any press release or public statement relating to this Agreement without the prior written permission of the other party. No failure on the part of either party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted herein. This Agreement shall be interpreted according to the laws of the state of Delaware. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided that RURO may assign this Agreement or any of its rights hereunder to an affiliate or successor without Customer’s written consent. This Agreement sets forth the entire and exclusive agreement between the parties, superseding all prior or contemporaneous representations, proposals, quotes, agreements or understandings concerning the subject matter addressed herein. Except as otherwise set forth herein, no amendment to this Agreement shall be valid unless in writing and signed by both parties.
Revised January 2017