BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Scope of Use” means your authorized scope of use for the Products, which may include: (a) number and type of Permitted Users, (b) storage or capacity (for Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units.
“Beta Versions” means pre-release and beta products We may make available to You.
“Confidential Information” means all confidential information disclosed by a party to the other party, whether orally or in writing, including but not limited to all code, inventions, know-how, business, technical and financial information disclosed to such party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
“Feedback” means comments, information, questions, data, ideas, description of processes, or other information that You may choose to submit to Railroad Software.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“License Term” means the term of each Software license granted.
“New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
“No-Charge Products” means Products that We offer to you at no charge, including free accounts, trial use, and access to Beta Versions.
“Order Form” means the customer agreement or other documents or online form(s) for placing orders hereunder, including addenda thereto, that are entered into between You and Us from time to time, including addenda and supplements thereto. Order Forms shall be deemed incorporated herein by reference. The term “Order Form” also includes any applicable renewal, or purchases you make to increase or upgrade your Authorized Scope of Use.
“Permitted Users” means the named individuals who are authorized by You to use the Products, for whom subscriptions to a Product have been ordered, and who have registered for user identifications and passwords. Permitted Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Products” means Software and Services.
“Railroad Software Technology” means the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Railroad Software, including without limitation as they may incorporate Feedback.
“Reseller” means an authorized reseller of Products.
“Sensitive Data” means: (i) any personally identifiable information, except as necessary for the establishment of your Railroad Software account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations).
“Service Description” means Railroad Software’s online service description for the Services, accessible via login at http://www.RailroadSoftware.com, as updated from time to time.
“Services” means Railroad Software’s hosted or cloud-based solutions.
“Software” means Railroad Software’s commercially available downloadable software products.
“Subscription Term” means the term for which Services are to be provided on a subscription basis pursuant to Your Order Form.
“Support and Maintenance” means the support and maintenance services for the Products described in the Service Description.
“Term” means the period during which either a valid License Term or a valid Subscription Term is in effect.
“We,” “Us” or “Our” means Railroad Software, Inc. a Delaware corporation.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.
“Your Modifications” means any source code modified by You as contemplated by Section 5.3.
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Services.
The Order Form will specify the Authorized Scope of Use. If you purchase through a Reseller, your Authorized Scope of Use shall be as stated in the Order Form placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order Form. Resellers are not authorized to make any promises or commitments on Railroad Software’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
Only Permitted Users may access and use the Products. Some Products may allow you to designate different types of Permitted Users, in which case pricing and functionality may vary according to the type of Permitted User. Permitted Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. Additional User subscriptions may be added during the applicable subscription term at then-currently applicable rates, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. You are responsible for compliance with this Agreement by all Permitted Users. All use of Products by you and your Permitted Users must be within the Authorized Scope of Use and solely for the benefit of you or your Affiliates.
5.1. Your License Rights. Subject to the terms and conditions of this Agreement, Railroad Software grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, your applicable Authorized Scope of Use, and the Service Description. The License Term will be specified in your Order Form. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order Form.
5.2. Number of Installations. Unless otherwise specified in your Order Form, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement).
5.3. Your Modifications. Subject to the terms and conditions of this Agreement, for any elements of the Software provided by Railroad Software in source code form, and to the extent expressly permitted in writing by Railroad Software, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Railroad Software has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 5.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Railroad Software at your expense.
6.1. Access to Services. Subject to the terms and conditions of this Agreement, Railroad Software grants you a non-exclusive right to access and use the Services during the applicable Subscription Term in accordance with this Agreement, your applicable Authorized Scope of Use and the Service Description. If Railroad Software offers client software (e.g., a desktop or mobile application) for any Service, you may use such software solely with the Service, subject to the terms and conditions of this Agreement. You acknowledge that our Services are on-line, subscription-based products and that we may make changes to the Services from time to time.
6.2. Subscription Terms and Renewals. Except as otherwise specified in your Order Form, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you give us 30 days’ notice that you do not wish to renew. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
6.3. Credentials. You must ensure that all Permitted Users keep their user IDs and passwords for the Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Railroad Software of any unauthorized use of which you become aware.
6.4. Your Data. You will retain all right, title and interest in and to Your Data in the form provided to Railroad Software. Subject to the terms of this Agreement, unless specifically identified on the Order Form, you hereby grant to Railroad Software a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Service to you and (b) for Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Permitted Users) direct or enable through the Service. Railroad Software may also access your account or instance in order to respond to your support requests.
6.5. Security. Railroad Software implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6.6. Storage Limits. There may be storage limits associated with a particular Service. These limits are described in the services descriptions on our website or in the Service Description on the Order Form for the particular Service. Railroad Software reserves the right to charge for additional storage or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage limits for the Services at any time in our discretion, with or without notice to you.
6.7. Responsibility for Your Data.
6.7.1. General. You must ensure that your use of Services and all Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Railroad Software and to grant the rights granted to Railroad Software in this Agreement and (ii) Your Data and its transfer to and use by Railroad Software as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 6.5 (Security), Railroad Software assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it. You shall keep proper backups of Your Data and the Software. Without limiting the generality of the liability limitations in this Agreement, We are not responsible for any loss of Your Data, “downtime”, or other loss or corruption of other software program files.
6.7.2. Sensitive Data. You will not submit to the Services (or use the Services to collect) any Sensitive Data. You also acknowledge that Railroad Software is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Services are not HIPAA compliant. Notwithstanding any other provision to the contrary, Railroad Software has no liability under this Agreement for Sensitive Data.
6.7.3. Indemnity for Your Data. You will defend, indemnify and hold harmless Railroad Software from and against any loss, cost, liability or damage, including attorneys’ fees, for which Railroad Software becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Railroad Software at your expense.
6.9. Deletion at End of Subscription Term. We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
Railroad Software will provide Support and Maintenance during the period for which you have paid the applicable fee. Support and Maintenance will be provided at the support level set forth in Appendix A, which is incorporated herein by this reference.
8.1. Return Policy. During the first thirty (30) days after the effective date of the order, if the Product fails to perform materially in accordance with the Service Description You may terminate your order and receive a refund of the amount paid for the returned Product. In the context of Software, a return means that we will disable the license key that allowed the Software to operate. In the context of Services, a return means that we will disable access to the Service. We will not accept returns after the 30-day return period.
8.2. Delivery. We will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Services) to the email addresses specified in your Order Form when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that Railroad Software has no further delivery obligation with respect to the Software after delivery of the license keys.
8.3. Payment. You agree to pay all fees in accordance with each Order Form. Unless otherwise specified in your Order Form, you will pay all amounts in U.S. dollars at the time you place your Order Form. Other than as expressly set forth in Section 8.1 (Return Policy) and Section 18 (IP Indemnification by Railroad Software), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
8.4. Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Railroad Software, you must pay to Railroad Software the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Railroad Software any such exemption information, and Railroad Software will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
We may offer No-Charge Products to you. Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any Beta Versions that we make available are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 9 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Railroad Software’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
11.1. License to Developer Guides. From time to time, Railroad Software may publish SDK’s or API’s and associated guidelines (“Developer Guides”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-Ons”). You may distribute your Add-Ons to third parties, but only for those Products permitted by Railroad Software, and only in accordance with the Developer Guides.
11.2. Conditions to Development of Add-Ons. Notwithstanding anything in this Agreement to the contrary, Railroad Software has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make about your Add-Ons) or your breach of this Section.
At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Authorized Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Authorized Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Authorized Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Railroad Software at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.
Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Railroad Software and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Railroad Software Technology. From time to time, you may choose to submit Feedback, including sharing Your Modifications or in the course of receiving Support and Maintenance. Railroad Software may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Railroad Software’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in this Agreement, each party agrees that all Confidential Information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party“) constitutes the confidential property of the Disclosing Party, provided that it is identified as confidential at the time of disclosure. Any Railroad Software Technology and any performance information relating to the Products shall be deemed Confidential Information of Railroad Software without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
This Agreement is in effect for the Term, unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Railroad Software, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Permitted Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Railroad Software Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. Any term or termination clauses in the Order Form will supersede this provision. The following provisions will survive any termination or expiration of this Agreement: Sections 6.7.3 (Indemnity for Your Data), 9.3 (Payment), 9.4 (Taxes), 10 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12.2 (Conditions to Development of Add-Ons), 13 (License Certifications and Audits), 14 (Ownership and Feedback), 15 (Confidentiality), 16 (Term and Termination), 17.2 (Warranty Disclaimer), 18 (Limitation of Liability), 21 (Dispute Resolution), 22 (Export Restrictions), and 24 (General Provisions).
16.1. Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order Form is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
16.2. WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND RAILROAD SOFTWARE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. RAILROAD SOFTWARE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF RAILROAD SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER RAILROAD SOFTWARE NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE $100. THIS SECTION 17 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 10 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 17 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States patent or registered copyright (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Railroad Software (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Service, any prepaid amounts for the terminated portion of the Subscription Term. Railroad Software’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Railroad Software with respect to your license to Software or subscription to Services in the 12 month period immediately preceding the claim is less than $50,000; (2) if the Product is modified by any party other than Railroad Software, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Railroad Software product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 6.7.3 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without Railroad Software’s prior written consent. THIS SECTION 18 (IP INDEMNIFICATION BY RAILROAD SOFTWARE) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY RAILROAD SOFTWARE UNDER THIS AGREEMENT.
We may identify you as a Railroad Software customer in our promotional materials. You may request that we stop doing so by submitting an email to legal@RailroadSoftware.com at any time. Please note that it may take us up to 30 days to process your request.
21.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the rules of the American Arbitration Association. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Atlanta, Georgia. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
21.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Georgia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 22.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the state or federal courts in Atlanta, Georgia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Atlanta, Georgia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Railroad Software may bring a claim for equitable relief in any court with proper jurisdiction.
21.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 22.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
21.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Order Forms or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order Form, posting on our blog, through your Railroad Software account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order Form is subject to the version of the Agreement in effect at the time of the Order Form.
Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by mail to Railroad Software, Inc., 410 Peachtree Pkwy Building 400, Suite 4245, Cumming, GA 30041, Attn: Legal. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and Railroad Software relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.