RG3 Analytics Inc Terms of Service Agreement (“Agreement”)

V1.3

Last modified:  July 1, 2022

 

The following are the terms and conditions for use of RG3 Analytics Inc (“RG3”) hosted software products and services, downloadable components and documentation (collectively “the Service”, “the Services”, or “RG3 Services”) between RG3 (collectively “RG3”, “we”, “us”, “our”) and you (either an individual or a legal entity that you represent as an authorized employee or agent).  If you are entering into this Agreement on behalf of your company, the terms “You” and “Your” in this Agreement means your company and all of its employees and agents.

PLEASE READ THIS AGREEMENT CAREFULLY.  BY (I) CLICKING A BOX INDICATING YOUR ACCEPTANCE; OR (II) BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (III) BY DIGITALLY OR MANUALLY SIGNING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.

By agreeing to the RG3 Terms of Service Agreement, you also agree to the RG3 Privacy Statement.

1. Term, Renewal and Termination

The Services provided by RG3 are subject to the terms of this Agreement, and as set forth in your subscription Order Form or automatic renewal.  Payment for Services is made in advance of the period of service provided, for the term specified per the Order.  Free and Trial plans can be canceled at any time by either party.

You will be liable for all the fees associated with your account according to the terms of the Agreement. This Agreement and your subscription renews automatically for another monthly term at the end of each calendar month, unless it is previously terminated by either party or a different plan and/or term is selected to take effect on the next renewal date.  In order to terminate Services, You must sign into Your account and complete the cancellation process prior to the start of the next renewal term.  Cancellations of Services that are requested in the middle of a term will be effective on the last day of the current subscription term.

Upon the expiration or termination of the Agreement, You will be unauthorized to use the Services, and agree to cease using the Services.

2. License

For the term of the Agreement, RG3 grants to You a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available Service for Your internal business use. The Service is made available to You as a hosted service. We host and retain physical control over the software and only make it available for access and use by You and Your additional users over the Internet.  Nothing in this Agreement obligates RG3 to deliver or make available any copies of computer programs or code from the software to You. You may not rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, branding, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service.

3. Your Data Protection Responsibilities

You understand that RG3 offers a platform for business processes, analysis, and reporting to assist you in running your business.  The platform provides many security features, which vary by edition. However, it is the responsibility of You and Your personnel who use the Services, to use the platform in accordance with security best practices and applicable data protection laws.  Additionally, it is expressly acknowledged by You that Your personnel whom have access to Your RG3 account may have the capability to download data, authorize third-party users to view or manipulate the data and files stored in Your RG3 account, and update critical platform settings.  You and Your personnel are also able to create reports to be provided to third parties.  It is Your responsibility to ensure that Your personnel are properly trained in the use of these features and follow all applicable data protection laws, data management security best practices, and your company’s policies.  You hereby acknowledge that You and Your personnel could intentionally or inadvertently expose Your data to unauthorized users if proper practices and procedures for building secure applications are not followed.  Further, You alone shall be responsible and liable for any unauthorized or unintentional data disclosure that may occur from the acts, omissions, or negligence of You, Your personnel or the end user.

4. Usage Rules

The Service is offered to you to help you with the operation of your business.  You or your legal entity may only subscribe to and use one RG3 account, and are required to keep your company information current.

You may not access the Service if you are a competitor of RG3.  You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.  You may not, without RG3’s prior written consent, allow any employee, agent, or consultant to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan.

You agree not to use the Service to: (i) conduct any business that is unlawful, (ii) infringe or otherwise violate a third party’s rights, (iii) collect information about third parties, without their express consent; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein, (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) attempt to gain unauthorized access to the Service or its related systems, data, or networks, or (ix) falsify the origin of an email by forging the sender address or email header.

RG3 reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Service, at RG3’s sole discretion, without any notice.

5. Free or Trial Subscriptions

If you have subscribed to a free or trial period to access the Services, you agree (i) that you maintain accurate and up to date contact information, and (ii) that you do not sign up for more than one free account.

RG3 reserves the right to change or discontinue free or trial subscriptions at any time at its sole discretion.

6. Suspension Due to Harm

RG3 may suspend Your account if it reasonably concludes that the activity of Your account is unlawful, or causes harm to RG3 and/or others.  If we suspend Your access to the Service, we will use commercially reasonable efforts to notify you and to resolve the issues causing the suspension of Service.  RG3 shall not be liable to You nor to any third party for any suspension of the Service under such circumstances.  It is Your responsibility to ensure that the contact information in your account is accurate for reaching You or Your representative.

7. Fees

Fees and any other charges for the use of the Services and for any add-ons or changes, are described on the Order Form or RG3 website. Service fees may change from time to time. If we change them, we will provide notice prior to the effective date of the change. If they do change, your continued use of the Service after the effective date indicates your agreement with the new fees and charges. Any change to fees and other charges will not be applicable to the active Term during which the change occurs.

8. Late Payment

All Service fees are billed in advance according to Your billing cycle. Overage fees if incurred, are billed monthly in arrears.  All Fees shall be paid in United States dollars unless otherwise agreed to by RG3.  If a subscription renewal billing transaction fails, and is not corrected and paid within ten (10) days of the original billing date, Your account is automatically suspended. Suspended accounts can lose preferential pricing or coupon code discounts, as such discounts are single use only.  Account reports and data may be automatically deleted thirty (30) days after subscription termination.  Reactivation of a terminated account subscription requires payment of all past due invoices if applicable, and payment in advance at the then current subscription pricing.

You must notify RG3 within seven (7) days after a billing cycle regarding any amount in dispute and must include reasonable detail regarding such dispute.

9. Ownership of Intellectual Property

You retain all right, title and interest to all the data that you, your employees or agents upload or input to your account, or cause to be uploaded or inputted to your account by any third party, or authorize RG3 to obtain electronically on your behalf from any third party, in the course of using the Service (“Customer Data”).  You, not RG3, shall have sole responsibility for the accuracy, quality, integrity, legality, deletion, correction, reliability, appropriateness, and intellectual property ownership or right to use the Customer Data, and RG3 shall not be responsible or liable for the use, storage, deletion, correction, destruction, damage, loss or failure to store any Customer Data, or any use or export of such Customer Data from your RG3 account.  RG3 reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including non-payment or unlawful use of the Services, however this right shall not infringe upon a data subject’s right under any applicable data protection laws.  Upon termination for cause, your right to access or use Customer Data immediately ceases, and RG3 shall have no obligation to maintain or forward any Customer Data.

RG3 shall own all rights, title and interest in and to all intellectual property rights in the Services and software, and all transactional, historical, computational, and performance data, as well as methods, algorithms, benchmark information, calculations, derivative works, and business processes (“RG3 Proprietary Information”).  The license granted to You during the term of service does not convey any rights in the Services or RG3 Proprietary Information, express or implied, or ownership in the Services or any intellectual property rights thereto.  Any rights not expressly granted herein are reserved by RG3.

10. Upgrades and Updates

RG3 reserves the right to enhance, upgrade, or modify the Services with or without notice to you.  At RG3’s sole discretion some upgrade and updates may be made available to You free of charge and some other features and functionalities may require additional fees if you choose to use them.

11. Confidential Information

For purposes of this Agreement, confidential information shall include Customer Data and RG3 Proprietary Information, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”).  Notwithstanding any definition contained within, personally identifiable information shall be considered confidential.  Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Either party may disclose Confidential Information on a need-to-know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.  With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.

12.  Data Processing and Use

You acknowledge, license, and authorize RG3 to use and process Customer Data associated with Your Account, including data as input, configured, imported from third parties, or modified.  Depending on the Services provided, we may process your Customer Data in order to:  (a) collect, organize, report, or analyze Customer Data from your Account through RG3-powered forms, reports, calculations, or aggregations in providing the Services, or (b) make improvements to the systems or Services provided, (c) provide reports or information to third parties, or (d) any other commercial purposes.  

13. Taxes

All payments, fees and other charges payable by You to RG3 under this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments.  You are responsible for the payment of all such taxes, levies and assessments imposed on You or RG3 arising out of this Agreement.

14. Warranties

RG3 represents and warrants that (i) RG3 has all rights necessary to grant to You the rights set forth in this Agreement for using the Services; (ii) the Service will perform substantially as described by the RG3 website in connection with the Services.

15. Disclaimer of Warranties

THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND RG3 HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. RG3 DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE OR SERVICE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.

16. Limitation of Liability

In no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement.  The aggregate liability of either party to the other with respect to this Agreement is limited, to the extent possible under applicable law, to the fees collected by RG3 from You pursuant to this Agreement in the twelve months preceding the imposition of liability.

 

17. Indemnification

RG3 will, at its expense, defend or at its option, settle any claim brought against You that the Services infringes any patent of any third party.  RG3 has the exclusive right to defend any infringement claim and make settlements thereof at its own discretion, and You may not settle or compromise such claim except with prior written consent of RG3.  You must give such assistance and information as RG3 reasonably requires.

In the event any infringement claim, action or allegation is brought or threatened, RG3 may, at its sole option and expense: (i) procure for You the right to continue use of the Service or infringing part thereof; (ii) modify, amend, or replace the Service or infringing part thereof, with other software having reasonably comparable capabilities; or, if neither of the foregoing is commercially practicable, (iii) terminate this Agreement and refund to You the prorated amount of the fees prepaid by You that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.

The foregoing obligations will not apply to the extent the infringement arises as a result of: (i) any use of the Services in a manner other than as specified in this Agreement; (ii) any use of the Service in combination with other products, equipment, devices, software, systems or data not supplied by RG3 to the extent such claim is directed against such combination; or (iii) any alteration, modification or customization of the Service made by any party other than RG3 or RG3’s authorized representative if such infringement would not have occurred without such modification or combination.

This section states the entire liability of RG3 with respect to infringement of any patent or other intellectual property right.

You shall indemnify, hold harmless and defend RG3, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against RG3 or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by RG3 or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your use of the Services for purposes other than for internal business use, or (ii) your breach of this Agreement, (iii) your negligence or willful misconduct in connection with the Service, or (iv) your violations of applicable law in connection with the Services.

18. Modifications to Terms and Other Policies

RG3 reserves the right to modify any of the terms and conditions contained in this Agreement, or any policy governing the Services, at any time, by posting the new agreement to the RG3 website.  You are responsible for regularly reviewing the site. Your continued use of the Service following RG3’s posting of the changes will constitute your acceptance of such changes.

19. Compliance With Laws

Each party must comply with all laws, rules or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States if applicable.

Should your use of the Services require adherence to industry-specific or third party regulations, you will be solely responsible for compliance with such regulations.  Further, you may not use the Services in such a way that would subject RG3 to those regulations without obtaining RG3’s prior written agreement.  

RG3 does not provide You with any legal, compliance, or business advice, directly or implied, regarding any relevant laws, rules or regulations in the jurisdictions in which You use the Services.  You understand and acknowledge that it is Your sole responsibility to monitor compliance with all relevant laws, rules, and regulations.

20. Severability and Waiver

If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

21. Governing Law

Unless prohibited by law, This Agreement shall be governed by and construed in accordance with the laws of the state of Wyoming without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with RG3’s provision of the Services to you, to submit to the jurisdiction of the state of Wyoming.  IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.

22. U.S. Government Use

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

23. Assignment; Change in Control

This Agreement may be assigned by RG3 to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.  Any actual or proposed change in control of You that results or would result in a direct competitor of RG3 directly or indirectly owning or controlling Your company shall entitle RG3 to terminate this Agreement for cause immediately upon written notice.

 

24. Notices and Service of Process

RG3 may notify you by the email as provided in your account. You may contact RG3 at the address below or by email at legal@rg3analytics.com.

 

Address:

RG3 Analytics Inc

ATTN: Legal

12218 Bradford Green Square, #315

Cary, NC 27519

United States

 

Please note, RG3 does not accept service of process at this address.  Please contact legal@rg3analytics.com for the address of RG3’s legal representation.  Any notices that you provide without compliance with this section on Notices shall have no legal effect.