Terms of Service
Last Updated: March 5, 2022
THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 10.
DISPUTES RELATED TO THESE TERMS OR THE RIPTIDE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS THAT MAY REQUIRE BINDING ARBITRATION. For more details, go to Section 13.8.
In this Agreement the terms “you”, “your”, or “Client” refer to you. If you are using a Riptide Service on behalf of a company or other organization, then you are agreeing to these Terms for that organization and binding that organization to this Agreement (and, in which case, the terms “you”, “your”, or “Client” refer to that organization). You represent and warrant that you are 18 years or older or otherwise of legal age in your resident jurisdiction and have the legal power and authority to enter into this Agreement and that, if the Client is an organization, this Agreement is entered into by an employee or agent with all necessary authority to bind that organization to this Agreement. Riptide or Client may also be referred to individually as “party” and together as “parties” in these Terms.
Client’s use of certain Riptide Services may be subject to additional terms, policies, rules, or guidelines applicable to the Riptide Services or certain features of the Riptide Services that we may post on or link to from the Site or the other Riptide Services (the "Additional Terms"). This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and Riptide, any Additional Terms and all other policies or exhibits linked to or referenced herein.
1. Changes to These Terms; Communications
1.1 Changes to the Terms. We reserve the right, at our sole discretion, to change these Terms (including any Additional Terms and any referenced policies and other documents) from time to time by posting a revised version on the Site or the other Riptide Services with a “last updated” date or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required (in our sole discretion) to click through the updated Terms to show acceptance and to continue to use the Riptide Services. Changes in the updated Terms will become effective upon the earlier of such posting or notification, and your continued use of the Riptide Services, following the date of such posting or notification, will constitute acceptance of the updated Terms, and the updated version of these Terms will supersede all prior versions. If Client does not agree to the updated Terms, Client will no longer have the right to use the Riptide Services and must stop using the Riptide Services immediately. Except as otherwise described in this Section 1.1, any change, modification or amendment to the Terms must be made in writing and signed by a duly authorized representative of each party (each in its discretion).
1.2 Communications. You agree to receive all communications, agreements, and notices that we provide in connection with any Riptide Services (“Communications”), including, but not limited to, Communications related to our delivery of the Riptide Services and your purchase of or subscription to the Riptide Services, via electronic means, including by e-mail, text, in-product notifications, or by posting them on the Site or otherwise through any Riptide Service. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner. Riptide is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
2. Provision of the Riptide Services
2.1 Riptide Services. Riptide offers web- and app-based services that help connect Clients, Providers (defined below) and End-Customers (defined below), including services through which:
Clients and End-Customers may communicate with each other via messages including SMS/MMS text messages about services requested from Client by the End-Customer (the “Requested Services”);
Clients may access data about the conversations including message content between Clients and End-Customers;
Clients may initiate conversations between their End-Customers and Providers relating to Requested Services to be delivered in whole or in part by such Providers; and
Clients may access data about the conversations relating to the Requested Services (including message content) between End-Customers and Providers (the “Service Network Data”).
When we refer to “End-Customer” in these Terms, we mean any person that is a customer of a Client, or that is a potential customer of a Client, that seeks a Requested Service from the Client, and when we refer to “Provider” in these Terms, we mean any person or entity that is not an Affiliate (defined below) of Client that is invited by Client to use the Riptide Services in connection with providing a Requested Service to an End-Customer.
Client will, from time to time, enter into a written order form (“Order Form”), or otherwise click to accept or agree to an online registration form, which references this Agreement ("Subscription Documentation") and details the Riptide Services ordered from Riptide and, if applicable, the usage limits or other scope of use descriptions for the applicable Riptide Services, including without limitation any usage or volume limits, numerical limits on Authorized Users (defined below), Providers and/or End-Customers, and descriptions of product feature levels (the "Scope of Use").
2.2 Our Responsibilities. Subject to all terms and conditions of this Agreement, we will make the Riptide Services designated in your Subscription Documentation available for use by you and your Authorized Users, Providers and End-Customers, but only in accordance with this Agreement (including the Acceptable Use Policy), the applicable Subscription Documentation, and all applicable Scope of Use descriptions.
Riptide is not a party to any agreement between or among Clients, Providers and/or End-Customers, and Riptide makes no representations and warranties on behalf of any Clients, Providers or End-Customers (including but not limited to the cost, quality, or timeliness of any goods or services (including Requested Services) provided to End-Customers by any Clients or Providers) and will have no liability for any interactions between or among Clients, Providers and/or End-Customers.
Although the Riptide Services may be accessible worldwide, Riptide makes no representation that the Riptide Services are appropriate or available for use in locations outside the United States (or that all products or features of the Riptide Services are available throughout the United States). Furthermore, accessing the Riptide Services from territories where their content or use is illegal is prohibited. Those who choose to access the Riptide Services, including Client, Providers and End-Customers, from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Riptide. You may not use or export the Riptide Services in violation of U.S. export laws and regulations.
2.3 Beta Releases and Free Access Services. Subject to Client’s compliance with the terms of this Agreement, Riptide may provide Client with certain Riptide Services for free or on a trial basis (a "Free Access Service") or with "alpha", "beta" or other early-stage Riptide Services, integrations or features ("Beta Releases") for the Subscription Term (defined below) set forth in the Subscription Documentation (if applicable). This Section 2.3 will apply to any Free Access Service or Beta Release (even if a Beta Release is provided for a fee) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, any service level agreement provided by Riptide will not apply to any Free Access Service or Beta Releases. Riptide may use good faith efforts in its discretion to assist Client with Free Access Services or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SERVICE OR BETA RELEASE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SERVICE LEVEL AGREEMENT OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH RIPTIDE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Beta Releases in your sole discretion. Riptide makes no guarantees or promises with respect to the continued availability of any Free Access Services or Beta Releases or that future versions of a Beta Release will be released or will be available under the same commercial or other terms. Riptide may discontinue Beta Releases at any time, in our sole discretion, and decide not to make a Beta Releases generally available. Notwithstanding anything to the contrary herein, Riptide may terminate Client’s right to use any Free Access Service or Beta Release at any time for any reason or no reason in Riptide’s sole discretion, without liability.
2.4 Changes to or Discontinuation of the Riptide Services. Riptide reserves the right to, at its sole discretion: (a) modify or discontinue all or any part of the Riptide Services at any time (including by changing the Terms, the Acceptable Use Policy or any applicable service level agreement, or by limiting or discontinuing certain functionality or features of the Riptide Services), or (b) alter the offering of the Riptide Services temporarily or permanently. Riptide also reserves the right to replace certain Riptide Services with functionally equivalent services. In the event Riptide discontinues or makes any modification or alteration to the Riptide Services or the offering thereof that has a material adverse effect on the functionality of the Riptide Services ordered under your Subscription Documentation, Client may terminate this Agreement by written notice to Riptide and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term that follows the date such termination notice is delivered.
3. Use Rights; Restrictions
3.2 Use of Services.
3.2.1 Eligibility and Use by Others. Client warrants that it and its employees, agents and contractors whom Client has authorized to access the Services on its behalf ("Authorized Users"): (a) if individuals, are over 18 years old; (b) have not previously been suspended or removed from the Riptide Services; and (c) will comply with all applicable laws and regulations when using the Riptide Services. Client may permit its Authorized Users to use the Riptide Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to the Site or on a click-through basis to Authorized Users upon access to the Site or other Riptide Services.
3.2.2 Responsibility for Authorized Users. Client agrees that Client will: (a) use the Riptide Services only in accordance with these Terms (including our Acceptable Use Policy, any applicable Subscription Documentation and Scope of Use description, and all applicable laws and regulations; and (b) be solely responsible for all acts, omissions, and activities of Authorized Users in connection with the Riptide Services, including Authorized Users’ access to the Riptide Services and their respective compliance with these Terms (including our Acceptable Use Policy), any applicable Subscription Documentation and Scope of Use description, and all applicable laws and regulations. Client will be solely responsible for authorizing and creating user IDs, passwords, and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of any such users during the Subscription Term, as Client deems appropriate; provided, however, Riptide may, in its sole discretion, suspend any Authorized User’s access to the Riptide Services. Client is solely responsible for ensuring that any Authorized User IDs, passwords, and other access credentials for the Riptide Services are kept strictly confidential and not shared with any unauthorized person. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords or access credentials, and Client must notify Riptide within twenty-four (24) hours of any breach of security or unauthorized use of its account or the account of any Authorized User.
3.2.3 Use by End-Customers. Any person that is an End-Customer of Client is subject to the Acceptable Use Policy, which includes Riptide’s right to remove or disable access to any End-Customer or content or resource that violates the Acceptable Use Policy.
3.2.4 Use by Providers. Any person or organization that is a Provider of Client and uses the Riptide Services, including via Client’s website or applications, is subject to the Acceptable Use Policy and the Provider Communications Policy and such other terms as may be provided by Riptide from time to time, which includes Riptide’s right to remove or disable access to any Provider or content or resource that violates either the Acceptable Use Policy or the Provider Communications Policy.
3.2.5 Mobile Software Use. Subject to the terms of this Agreement including any Scope of Use limitations, Riptide grants Client and each of its registered Authorized Users a non-transferable, non-exclusive license to download, install and use (in compliance with this Agreement) one copy of the Mobile Software in object code form onto a mobile device that is owned and controlled by Client or such Authorized User, respectively.
3.3 General Restrictions. Client must not (and must not allow any third party to), directly or indirectly: (a) rent, lease, copy, transfer, sublicense or provide access to the Riptide Technology (as defined below) to a third party (except for access provided to Authorized Users and Providers in compliance with these Terms and only to the extent specifically authorized above); (b) violate any applicable laws, regulations, or industry standards or guidance (including any relating to (i) the obtaining of consent for transmitting, recording, collecting or monitoring data or communications or (ii) compliance with opt-out requests for any data or communications); (c) use the Riptide Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Riptide Technology or Riptide Services (which is deemed Riptide’s Confidential Information (as defined below)); (e) modify or create a derivative work of the Riptide Technology or any portion thereof; (f) 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 Riptide Technology or Riptide Services; (g) attempt to probe, scan or test the vulnerability of the Riptide Technology or the Riptide Services, or breach, break or circumvent any security or authentication measures or rate or scope of use limits for Riptide Services or willfully render any part of the Riptide Technology or Riptide Services unusable; (h) distribute any portion of the Riptide Technology other than as specifically authorized above, or copy, frame or scrape any content available through the Riptide Services other than your own Client Data in any manner unless expressly authorized by Riptide; (i) use the Riptide Service in violation of the Acceptable Use Policy or the Provider Communications Policy; or (j) remove or obscure any proprietary or other notices contained in the Riptide Technology including in any reports or output obtained from the Riptide Technology.
4. Client Data
4.2 Aggregate/Anonymous Data. Client agrees that Riptide will have the right to generate usage data from Client’s, or its Providers’ and End-Customers’, use of the Riptide Services and may aggregate anonymized Client Data ("Aggregate/Anonymous Data"). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Riptide Technology, which Riptide may use for any business purpose during or after the term of this Agreement (including to develop and improve Riptide’s products and services and to create and distribute reports and other materials). Riptide will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Providers or End-Customers, or that would otherwise violate applicable laws.
4.3 Monitoring. Client understands and agrees that Riptide, and any third-party platform(s) Client uses or accesses in connection with the Riptide Services, may monitor and analyze Client Data to improve the Riptide Services or applicable third-party platform(s); to improve Client’s, or its Providers’ or End-Customers’, experience using the Riptide Services or third-party platform(s); to customize and communicate informational or product offerings and promotions to Client, Providers or End-Customers; to ensure compliance with the Acceptable Use Policy and Provider Communications Policy (including taking any corrective action permitted in those policies); and/or to make the Riptide Services or third-party platform(s) more helpful or useful to Client and other users.
4.4 Storage. You acknowledge that Riptide may establish general practices and limits concerning use of the Riptide Service, including without limitation the maximum period of time that data or other content will be retained by the Riptide Service and the maximum storage space that will be allotted on Riptide’s servers on your behalf. You agree that Riptide has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Riptide Service. You acknowledge that Riptide reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Riptide reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
5. Client Obligations
5.1 Client Warranty. Client warrants and represents that it is in full compliance with all applicable state, federal, and international laws, rules and regulations and that Client will not use the Riptide Services in a manner that would violate or cause Riptide to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, and Do Not Call rules and prohibitions. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Riptide, or otherwise has legal rights to provide such Client Data, and Client Data and Riptide’s use thereof will not violate third-party rights, including intellectual property, privacy and publicity rights; (b) Riptide’s possession and/or use of the Client Data on Client’s behalf in connection with the Riptide Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) Client is authorized to provide Riptide with any End-Customer, Client, or Provider information it provides in connection with the Riptide Services, including any personally identifying information; and (d) Client and/or Client’s authorized representative(s) and Providers will only use the Riptide Services for interaction with actual End-Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Riptide Services and notify Riptide immediately.
5.2 Provider and End-Customer Consent; Intended Use of the Services. Client understands and agrees that the Riptide Services are intended to allow Client and Providers to send electronic communication, including but not limited to text messages, only to Client’s own Providers and End-Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations. Client also understands and agrees that the Riptide Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable laws, rules, and regulations (hereinafter, collectively “Marketing”). Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to End-Customers and obtain all required consents and/or authorizations from End-Customers, based on applicable laws, prior to utilizing the Riptide Services; (b) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Riptide the rights herein; and (c) send Marketing messages through the Riptide Services only in compliance with all local, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its and its Providers’ compliance with applicable laws and regulations and must not rely on the Riptide Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation and Riptide expressly disclaims any liability for Client’s and its Providers’ non-compliance. Riptide reserves the right to suspend or terminate Client’s and its Providers’ access to the Riptide Services or the messaging features if Riptide believes, in its discretion, that Client has violated this Section.
6. Fees and Payment
6.1 Fees. Unless otherwise specified on the applicable Subscription Documentation, the Riptide Services are provided on an ongoing subscription basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in Client’s Subscription Documentation ("Subscription"). Client agrees to pay to Riptide the fees for the Subscription to the Riptide Services ("Subscription Fees") and any additional fees (if applicable), all as set forth in the applicable Subscription Documentation (collectively, the "Fees"). Except as otherwise specified in the applicable Subscription Documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription term, such Riptide Services will automatically and without further notice convert to a paid Subscription and Client agrees to pay Riptide the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within fifteen (15) days of the invoice date.
6.2 Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid monthly in advance, though any overage fees, taxes or Surcharges (defined below) may be charged in arrears, and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Fees are non-refundable and non-creditable, except as expressly set forth in Sections 2.4 (Changes to or Discontinuation of the Riptide Services) and 12.2 (Termination for Cause). If the payment method selected on the applicable Subscription Documentation is credit card, ACH, or direct debit, Client authorizes Riptide to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Riptide Services accessed by Client will be billed when the Riptide Service is first accessed by Client and automatically, on an auto-renew basis on Client’s existing Subscription Start Date. The Subscription will continue unless and until you or Riptide terminate your Subscription in accordance with Section 12.1 and you must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should Riptide be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Riptide shall have the right to charge interest on all overdue amounts at the monthly rate of 1.5%, compounded monthly, or the maximum lawful amounts, whichever is less. Additionally, after payment becomes overdue, Riptide shall have the right to immediately suspend Client’s access to the Riptide Services and/or seek to enforce Client’s payment obligations including through the use of third-party services.
6.3 Taxes and Surcharges. Riptide’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies, whether domestic or foreign, other than taxes based on the income of Riptide. Additionally, Riptide may (in Riptide’s sole discretion) charge Client, and Client will pay, any and all additional costs, fines, or penalties that Riptide incurs from a governmental or regulatory body or telecommunications provider (collectively, “Surcharges”) as a result of Client’s use of the Riptide Services. Client will make tax and Surcharge payments to Riptide to the extent amounts are included on Riptide’s invoices.
6.4. Annual or Monthly Fee Increase. Riptide reserves the right to increase Fees for any Riptide Services, upon thirty (30) days’ prior notice, effective on the start date of your subsequent Subscription Term.
6.5 Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved; provided that your dispute is reasonable and continuing in good faith and that you cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Riptide Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with us or we determine your dispute is not reasonable or continuing in good faith.
7. Riptide Technology; Third-Party Products and Integrations; Confidentiality
7.1 Riptide Technology.
7.1.1 Ownership and Updates. By accepting this Agreement, Client acknowledges that the Riptide Services contain Riptide Technology and Confidential Information that is protected by copyright, patent, trademark, trade secret and/or other intellectual property rights, that Client is obtaining only a limited right to use the Riptide Services as expressly permitted by this Agreement and irrespective of any use of the words "purchase", "sale" or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited use right, Client may not make any use of Riptide Technology or Confidential Information. Client agrees that Riptide (or its suppliers) exclusively retains all rights, title and interest (including all intellectual property rights) in and to all Riptide Services (including the Mobile Software), products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, patents and templates (including in any reports or output obtained from the Riptide Services), anything delivered as part of support, materials or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) ("Riptide Technology") provided by Riptide (which is deemed Riptide’s Confidential Information) and reserves any rights and licenses not specifically granted herein. Furthermore, Riptide exclusively owns and reserves all right, title, and interest in and to Riptide’s Confidential Information and any data, including Aggregate/Anonymous Data, in anonymized or aggregated form that does not identify you, any Providers, any End-Customers, or any natural person, generated or derived from the use or operation of the Riptide Services, including volumes, frequencies, bounce rates, and performance results for the Riptide Services. The Riptide Services, other than the Mobile Software, are offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software or any other Riptide Technology behind any Riptide Services (except as expressly authorized by Section 3.2.5 (Mobile Software Use) in connection with downloading the Mobile Software), and that Riptide at its option may make updates, bug fixes, modifications or improvements to the Riptide Services from time-to-time.
The “Riptide”, “Riptidehq”, and “ConversationStarter” names and logos are trademarks and service marks and “Riptide” is a registered trademark of Riptide (collectively the “Riptide Trademarks”). Other Riptide product and service names and logos used and displayed via the Riptide Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Riptide. Nothing in this Agreement or the Riptide Services should be construed as granting, by implication, estoppel, or otherwise, any license or other right to use any Riptide Trademarks displayed in connection with the Riptide Services. All goodwill generated from the use of Riptide Trademarks will inure to our exclusive benefit.
7.1.2 Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Riptide (collectively, "Feedback"), Client hereby grants Riptide a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Riptide’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.
7.2 Third-Party Products and Integrations. Riptide may make arrangements with third-party providers, or facilitate Client making arrangements with third-party providers, that provide products or services in connection with the Riptide Services described in this Agreement. If Client elects to use applications, integrations, add-ons, software, code, online services, systems and other products not developed by Riptide ("Third-Party Products") in connection with or otherwise made available through the Riptide Services, those products may make Third-Party Content available to Client and may access Client’s instance of the Riptide Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Riptide is not a party to any such terms and will not be liable thereunder. Riptide does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Riptide as "powered", "verified" or otherwise) and disclaims all responsibility and liability for these items and their access to the Riptide Services, including their modification, deletion, disclosure or collection of Client Data. Riptide is not responsible in any way for Client Data once it is transmitted, copied or removed from the Riptide Services.
7.3.1 Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, Subscription Documentation, Client Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates (defined below). Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party. When we refer to an “Affiliate” in these Terms, we mean any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
7.3.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in this Agreement or otherwise in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under these Terms. Receiving Party is responsible for its Representatives’ compliance with this Section 7.3. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 7.3. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
7.3.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
7.3.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 7.3 and that, in the event of an actual or threatened breach of the provisions of this Section 7.3, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
8.1.1 DISCLAIMER OF WARRANTIES. EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED TO CLIENT IN ANY APPLICABLE ORDER FORM, THE RIPTIDE SERVICES, RIPTIDE TECHNOLOGY, RELATED SUBSCRIPTION DOCUMENTS AND MATERIALS, AND ALL CONTENT AVAILABLE THROUGH THE RIPTIDE SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. RIPTIDE, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, MEMBERS, SHAREHOLDERS, AGENTS, AND SUPPLIERS (“RIPTIDE PARTIES”) MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. RIPTIDE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT RIPTIDE SERVICES OR RIPTIDE TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT RIPTIDE SERVICES OR RIPTIDE TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND RIPTIDE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. RIPTIDE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-RIPTIDE SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON RIPTIDE TECHNOLOGY OR RIPTIDE’S SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
8.1.2 NO ADVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE RIPTIDE SERVICES OR RIPTIDE PARTIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE RIPTIDE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE RIPTIDE PARTIES OR THE RIPTIDE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. RIPTIDE DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY RIPTIDE PARTIES TO CLIENT(S) DOES NOT CONSTITUTE LEGAL ADVICE. USE OF THE RIPTIDE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.
8.1.3 NO ENDORSEMENT. THE RIPTIDE PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR THE OTHER RIPTIDE SERVICES (INCLUDING WITHOUT LIMITATION THE SERVICES PROVIDED BY CLIENT OR PROVIDERS TO END-CUSTOMERS), AND THE RIPTIDE PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION THE SERVICES PROVIDED BY CLIENT OR PROVIDERS TO END-CUSTOMERS). YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE RIPTIDE SERVICES.
8.4 Waiver. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others. If you are a resident of another state you waive any similar statute or doctrine.
9.1 Indemnification by Client. Client will defend, indemnify and hold harmless Riptide and its officers, directors, employees, consultants, affiliates, subsidiaries, agents and Affiliates (together, the "Riptide Indemnified Parties") from and against any claim, demand, suit, or proceeding (and related costs, damages, liabilities and expenses (including reasonable attorney’s fees)) made or brought against a Riptide Indemnified Party by a third party alleging or arising out of: (a) your (or any of your Provider’s or End-Customer’s) unauthorized use of, or misuse of, the Riptide Services; (b) your (or any of your Provider’s or End-Customer’s) violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including your Providers or End-Customers); (d) any Client Data; (e) Riptide’s use, as contemplated in this Agreement, of any information provided to Riptide by you or any of your Providers or End-Customers; (f) breach or alleged breach of this Agreement (including our Acceptable Use Policy) by you, breach or alleged breach of the Acceptable Use Policy or Provider Communications Policy by any of your Providers or the breach or alleged breach of the Acceptable Use Policy by any of your End-Customers; or (g) any claim of a governmental entity, telecommunications provider or other third-party that you or any of your Providers or End-Customers have violated any law, rule, regulation or agreement (collectively, “Client Indemnifiable Claims”).
9.2 Indemnification by Riptide.
9.2.1 Infringement Claims. Riptide will defend, indemnify and hold Client harmless from and against any claim, demand, suit, or proceeding (and related costs, damages, liabilities and expenses (including reasonable attorney’s fees)) made or brought against Client alleging that our provision of the Riptide Services to Client infringes or misappropriates such third party’s intellectual property rights (“Infringement Claim”).
9.2.2 Infringement Options. If our provision of the Riptide Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may at our option and expense: (a) procure the right to continue providing the Riptide Services as set forth in these Terms; (b) modify the Riptide Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Riptide Services that are the subject of any Infringement Claim.
9.2.3 Limitations. We will have no liability or obligation under this Section with respect to any Infringement Claim (a) arising out of your (or any of your Provider’s or End-Customer’s) use of the Riptide Services in breach of these Terms (including the Acceptable Use Policy and the Provider Communications Policy; (b) arising out of the combination, operation, or use of the Riptide Services with other applications, portions of applications, products, or services where the Riptide Services would not by themselves be infringing; or (c) arising from Free Access Services or Beta Services.
9.3 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Client Indemnifiable Claim (individually and collectively referred to as a “Claim”); provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section 9 except to the extent that Indemnifying Party is actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section 9 at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of any Claim. Notwithstanding anything to the contrary in this Section 9, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 9 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
9.4 Exclusive Remedy. This Section 9 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.
10. Limitation of Liability
10.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WILL THE RIPTIDE PARTIES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A RIPTIDE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2 LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE RIPTIDE PARTIES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR (OR YOUR PROVIDERS’ OR END-CUSTOMERS’) USE OF THE RIPTIDE SERVICES EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE RIPTIDE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.3 EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 10.2 DO NOT APPLY TO AMOUNTS PAYABLE PURSUANT TO RIPTIDE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION).
THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 10 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
Unless otherwise specified in the applicable Subscription Documentation, Riptide may use Client’s name, logo and marks to identify Client as a Riptide Client on Riptide’s Site and other marketing materials.
12. Term and Termination
12.1 Term. This Agreement is effective until the applicable Subscription Term for the Riptide Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Riptide Services is one (1) month and will automatically renew for subsequent periods of equal duration (the "Subscription Term"), unless either party gives written notice to the other party of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Client may give notice of non-renewal by giving notice through the billing portal in the Riptide Services. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Riptide Services ("Subscription Start Date"). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by Section 2.4 (Changes to or Discontinuation of the Riptide Services) or Section 12.2 (Termination for Cause).
12.2 Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice is provided of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing or as permitted by Section 2.4 (Changes to or Discontinuation of the Riptide Services), Client will be responsible for the Fees due for the entire Subscription Term. Riptide may also terminate this Agreement or any related Subscription Documentation immediately and without prior notice as permitted by Section 2.4 (Changes to or Discontinuation of the Riptide Services) or if Client breaches Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), or for repeated violations of other Sections of this Agreement.
12.3 Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s and its Providers’ and End-Customers’ access and use and Client’s other rights relating to the Riptide Service will terminate and Client must immediately cease use of the Riptide Services (including any related Riptide Technology) and delete (or, at Riptide’s request, return) any and all copies of any Riptide documentation, scripts, passwords or access codes and any other Riptide Confidential Information in Client’s possession, custody or control and (b) Client’s right, and any rights its Providers and End-Customers may have, to access any Client Data in the applicable Riptide Services will cease, and Riptide may delete any such data in its possession at any time. If Riptide terminates this Agreement for cause as provided in Section 12.2 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
12.4 Survival. The following Sections survive any expiration or termination of this Agreement: 3 (Use Rights; Restrictions); 4 (Client Data); 5 (Client Obligations); 6 (Fees and Payment); 7 (Riptide Technology; Third-Party Products and Integrations; Confidentiality); 8 (Disclaimers); 9 (Indemnification); 10 (Limitation of Liability); 12 (Term and Termination); and 13 (General).
12.5 Suspension of Riptide Services. Riptide may suspend Client’s and its Providers’ access to and use of the Riptide Services immediately upon notice to Client for cause if Riptide in good faith, determines: (a) Client’s account is overdue or (b) Client has exceeded its Scope of Use limits. Riptide may also suspend Client’s and its Providers’ access to and use of the Riptide Services, remove Client Data or disable Third-Party Products immediately upon notice to Client for cause if, Riptide in good faith, determines: (i) that you or any of your Providers or End-Customers materially breaches (or we, in good faith, believe that you or any of your Providers or End-Customers has materially breached) any provision of these Terms (including without limitation our Acceptable Use Policy or Provider Communications Policy); (ii) there is an unusual and material spike or increase in your use of the Riptide Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Riptide Services; (iii) that our provision of the Riptide Services is prohibited by applicable laws or regulations; (iv) there is any use of the Riptide Services by you or any of your Providers or End-Customers that in our judgment threatens the security, stability, integrity, or availability of the Riptide Services; or (v) that information in your or any of your Providers accounts is untrue, inaccurate, or incomplete. For avoidance of doubt, Client will remain responsible for payment of all Fees during any suspension period. If we suspend the Riptide Services pursuant to this Section, we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any of your Providers or End-Customers may incur in connection with any such suspension.
13.1 No Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each party to be legally binding. Titles and headings of sections of these Terms are for convenience only and will not affect the construction of any provision of these Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Subscription Documentation, (2) these Terms, (3) our Provider Communications Policy and Acceptable Use Policy, and (4) any other terms incorporated by reference herein.
13.2 Assignment. You will not assign, delegate, or otherwise transfer these Terms or any applicable Subscription Documentation, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms or any applicable Subscription Documentation without our consent will be null and void. We may assign, delegate, or otherwise transfer these Terms or any applicable Subscription Documentation, in whole or in part, without your consent. Subject to this Section 13.2, these Terms and any applicable Subscription Documentation will be binding on each party and each party’s successors and assigns.
13.3 Relationship. Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
13.4 Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
13.5 Notices. Except as otherwise expressly set forth in this Agreement, any notice or other Communication to Riptide under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Riptide by registered or certified mail at Suite 200, 846 Harrison Street, San Francisco, CA 94107 and include "Attn. Legal Department" in the subject line. Riptide may send notices or other Communications to Client in the manners set forth in Section 1.2.
13.6 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake or other natural disaster, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
13.7 Government Terms. We provide the Riptide Services, including the Riptide Technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any of your Providers or End-Customers) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Riptide Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Riptide Services were developed fully at private expense.
13.8 Dispute Resolution. Any unresolved controversy or claim arising out of or relating to this Agreement (a “Dispute”), except as (i) otherwise expressly provided in this Agreement, or (ii) any such controversies or claims arising out of either party’s intellectual property rights for which a provisional remedy or equitable relief is sought, shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the American Arbitration Association (the “AAA”), then by one arbitrator having reasonable experience in business and technology transactions of the type provided for in this Agreement and who is chosen by the AAA. The arbitration shall take place in San Francisco, California, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the California Code of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings. The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in the U.S. District Court for the Northern District of California.
13.9 Governing Law and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof.
13.10 Class Action Waiver. Each party agrees that any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot combine more than one person’s or entity’s Disputes into a single case and cannot preside over any consolidated class or representative proceeding. Each party agrees the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought a Dispute and cannot impact or otherwise be used to decide Disputes with other people or entities, including other Riptide customers. If a court decides that this Section 13.10 is not enforceable or valid, then this Section 13.10 will be null and void. However, the rest of these Terms will still apply.
13.11 Entire Agreement. Except as provided in these Terms and any exhibits or attachments, applicable Subscription Documentation, or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. The parties agree that Section 7.3 (Confidentiality) hereby supersedes and prevails over all prior, contemporaneous, and future non-disclosure or confidentiality agreements between the parties in their entirety. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if accepted or signed by us after the date you accept these Terms.
13.12 Subcontractors. Riptide may use subcontractors and permit them to exercise the rights granted to Riptide in order to provide the Riptide Services and related services under this Agreement.
13.13 Subpoenas. Nothing in this Agreement prevents Riptide from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Riptide will use commercially reasonable efforts to notify Client where permitted to do so. Client will provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers.
13.14 No Third-Party Rights. Except as expressly set forth in Section 13.16, nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any Affiliates. Furthermore, Client’s Affiliates are not permitted to use the Riptide Services under these Terms unless an Affiliate agrees to these Terms individually and creates its own account.
13.15 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Riptide Services or to receive further information regarding use of the Riptide Services.
13.16 Notice Regarding Apple. This Section 13.16 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Riptide only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Riptide Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Riptide Services. If the Riptide Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Riptide Services. Apple is not responsible for addressing any claims by you or any third party relating to the Riptide Services or your possession and/or use of the Riptide Services, including: (a) product liability claims; (b) any claim that the Riptide Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Riptide Services and/or your possession and use of the Riptide Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Riptide Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
13.17 Interpretation. Except as may be otherwise specifically stated in this Agreement, the term “including” shall mean “including without limitation.”