1. DEFINITIONS. As used in this TOS, the definitions below shall apply. Definitions for other defined terms are set forth elsewhere in this TOS.
“Client” means the entity or person purchasing Services from Refinery Affiliate pursuant to and as indicated in an Order Form.
“Force Majeure Event” has the meaning stated in Section 11.c.
“Refinery Affiliate” means Ultra Affiliate Inc. d/b/a Refinery Affiliate, as a Delaware corporation.
“Order Form” means an agreement pursuant to which Client purchases Services from Refinery Affiliate, which references this TOS and which is governed by this TOS. Each reference to an Order Form herein shall mean such Order Form as governed by, and inclusive of, the terms and conditions set forth in this TOS.
“Services” means the services Refinery Affiliate agrees to provide to Client, as identified in an Order Form.
“Software” means the software modules made available by Refinery Affiliate, as identified in an Order Form, to be accessed by Client over an internet connection when using the Services.
“System” means the hardware, configuration, systems software, applications software, software utilities, firmware, embedded software, telecommunications equipment and connectivity, hosting sites and other facilities that Refinery Affiliate hosts, maintains and uses to provide Users with access to and use of the Software and Services.
“Term” shall mean the duration of the current Order Form, any subsequent Order Form entered into between the Client and Refinery Affiliate, as well as any extensions or renewals thereof.
“TOS” means this Software as a Service (SaaS) Terms of Service, and incorporates any referenced policies, schedules, exhibits and attachments and governs the terms of each Order Form entered into by Refinery Affiliate and Client.
“Users” are employees, agents and third-party contractors of Client that have been designated or permitted by Client to access the Refinery Affiliate System.
2. Refinery Affiliate SERVICES. Refinery Affiliate shall provide the Services to the Client consistent with the terms contained herein.
Service Levels. Subject to the terms and conditions of this TOS, throughout the Term, Refinery Affiliate shall provide Client with the Services, diligently, in an accurate and timely manner, in accordance with any applicable time or standards expressly set forth in this TOS and the service level commitments set forth in an Order Form or Exhibit A, if any.
Security and Access. With regard to the System, Refinery Affiliate will maintain and enforce safety, physical and computer system security procedures and safeguards consistent with prevailing industry standards, which may be further described in Exhibit B.
Early Access and Evaluation Products. Refinery Affiliate may make Early Access Products or Evaluation Products available to Client, which may or may not be described in an Order Form. If Refinery Affiliate makes any Early Access Product or Evaluation Product available to Client, Refinery Affiliate reserves the right to, in its sole discretion, suspend or terminate Client’s access to the Early Access Product or Evaluation Product at any time.
3. LICENSED SOFTWARE; PROPRIETARY RIGHTS; LIMITS ON USE
Limited License to Client. Refinery Affiliate hereby grants Client a non-exclusive, non-transferable, and non-sublicensable license for the Term to access and use the System and Services via the Internet, in accordance with this TOS.
Proprietary Rights. The System, Software and accompanying materials (“Materials”) embody valuable confidential and proprietary information of Refinery Affiliate. Client understands and agrees that the System, Software and Materials (including, but not limited to, all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are the exclusive property of Refinery Affiliate, or of third parties from whom Refinery Affiliate has obtained rights to use certain materials contained therein. Except for the limited license granted to Client as set forth in Section 3.a., Refinery Affiliate grants no rights to Client in the System, Software or Materials.
Limits on Use. Client shall not, and shall not permit or cause its Users to:
create or enable the creation of derivative works, modifications, or adaptations of the System or the Software, or attempt to recompile, reverse engineer or disassemble the System or the Software;
use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the System, the Software, or any portions or content thereof (except as made available by Refinery Affiliate as features of the System or the Software, as the case may be);
intentionally interfere with the functionality of the System or the Software by (i) uploading, storing, e-mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, Trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the System or the Software; (ii) modifying the System or the Software or interfering or attempting to interfere with the proper operation of the System or the Software or the use of the System or the Software by third parties, including through the use of any device, software or routine; or (iii) using the System or the Software to disrupt the servers or networks connected to the Web server; or
violate any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission through the System or the Software of technical data or software exported from the United States, and all local laws and regulations regarding online conduct and acceptable content.
4. FEES AND PAYMENT TERMS; TAXES
Fees and Payment Terms. The fees, payment terms and accepted methods for payment are set forth on the applicable Order Form.
Taxes. Client is responsible for all sales, use and all other taxes that are levied or imposed on the fees charged under the applicable Order Form, other than taxes imposed on Refinery Affiliate’s net income.
Late Payments. If any amount is not paid when due, Refinery Affiliate shall include but not be limited to the following remedies:
Impose interest as of the day after the date such payment was due and payable and shall continue to accrue such interest until such payment is made at a rate equal to the lesser of either (a) two percent (2%) per 30-day period, or (b) the maximum rate permitted by the State of Utah
Be entitled to recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorneys’ fees);
Temporarily or permanently discontinue the Services or access to the System or the Software or any combination of the foregoing
Pursue any other rights available to Refinery Affiliate in law or equity.
5. CLIENT DATA
General. All Client records and data uploaded onto the System by or on behalf of Client (the “Client Data”) are the property of Client. Client represents and warrants that Client owns all Client Data and has full authority to have the Client Data uploaded onto and maintained on the System.
Consent to Use Client Data. Client hereby irrevocably grants all such rights and permissions in or relating to Client Data: (a) to Refinery Affiliate, during the Term as necessary or useful to perform the Services; (b) to Refinery Affiliate during the Term and thereafter to use the Client Data in aggregated and anonymized form only (not including any Confidential Information of Client or any information that identifies or could reasonably be used to identify Client, its personnel, its customers or clients, or any other individual or entity) for internal research purposes, for benchmarking purposes to create (in aggregated form) statistical comparisons among users of the Software, and to improve its products, improve the quality of its analytics and improve (“train”) its artificial intelligence algorithms and machine learning models associated with the Software, and (c) to Refinery Affiliate as are necessary or useful to enforce this TOS and exercise its rights and perform its obligations hereunder.
Personal Data. The terms of Refinery Affiliate Privacy Policy can be found in Exhibit C. The Policy shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Refinery Affiliate solely on behalf of Client, if any; (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by Refinery Affiliate solely on behalf of Client, if any; and/or (iii) the collection, use or disclosure of personal information that is subject to The Personal Information Protection and Electronic Documents Act (“PIPEDA”) by Refinery Affiliate solely on behalf of Client, if any.
Client Suggestions. Any suggestions, enhancement requests, recommendations, or other feedback provided by Client or its users relating to the functionality or performance of the Services, Early Access Product, and/or Evaluation Product (collectively, "Suggestions") shall be the sole and exclusive property of Refinery Affiliate. Client hereby assigns to Refinery Affiliate all rights, title, and interest in and to any such Suggestions, including all intellectual property rights therein, and agrees to assist Refinery Affiliate, at Refinery Affiliate 's expense, in perfecting and enforcing such rights.
6. CONFIDENTIALITY.
“Confidential Information” means any information obtained by the receiving party from or on behalf of the disclosing party that relates to the past, present or future business activities of the disclosing party or its subsidiaries or affiliates, or their respective employees, customers or third party suppliers or contractors, including the terms and conditions of this TOS, information exchanged in the course of negotiations, any Schedule, any Order Form, and any information relating to the applicable entity’s (or person’s) plans, pricing, methods, methodologies, processes, financial data, lists, intellectual property rights, customer information, apparatus, statistics, programs, research, development, or information technology. Confidential Information does not include information that the receiving party can demonstrate: (i) is currently in the public domain; (ii) was previously known to the receiving party free from any obligation to keep it confidential; (iii) is publicly disclosed by or on behalf of the disclosing party at any time; (iv) is independently developed by the receiving party without any access to or use of Confidential Information of the disclosing party; or (v) is rightfully obtained by the receiving party from a third party lawfully in possession of the Confidential Information and who is not bound by confidentiality obligations to the disclosing party.
The receiving party must hold all Confidential Information of the disclosing party in trust and confidence for the disclosing party and, except as set forth in this TOS or as otherwise may be authorized by the disclosing party in writing, the receiving party shall not disclose to any third party, any Confidential Information of the disclosing party. The receiving party must treat all Confidential Information of the disclosing party with the same degree of care that the receiving party treats its own confidential or proprietary information, but in no event less than reasonable care.
The receiving party may disclose Confidential Information of the disclosing party to the receiving party’s employees, and to any of the receiving party’s contractors who are bound to the receiving party by confidentiality obligations substantially equivalent to those set forth in this Section, solely as required in order for the receiving party to perform under this TOS, or in the case of Client, in order to access and use materials.
Each party may retain copies of the Confidential Information, as applicable, to the extent required to comply with applicable legal and regulatory requirements. Such Confidential Information, as applicable, will remain subject to the terms and conditions herein. Otherwise, at the request and option of the disclosing party and in the event of termination or expiration of this TOS (or any part thereof), the receiving party agrees to promptly: (a) return to the disclosing party the Confidential Information, as applicable; or (b) destroy or permanently erase the Confidential Information from all forms of recordation, to the extent reasonably feasible, and, if requested by the disclosing party, acknowledge in writing that it has done so.
The Parties acknowledge and agree that any disclosure of Confidential Information will in no way be construed as an assignment, transfer, or conveyance of title to or ownership rights in such Confidential Information.
In the event of a breach or threatened or attempted breach of the receiving party’s obligations with respect to Confidential Information, the disclosing party may have no adequate remedy in money or damages and, accordingly, may immediately seek an injunction against such breach.
The receiving party may disclose Confidential Information of the disclosing party if required to do so under applicable law, rule or order provided that the receiving party, where reasonably practicable and to the extent legally permissible, provides the disclosing party with prior written notice of the required disclosure so that the disclosing party may seek a protective order or other appropriate remedy, and provided further that the receiving party discloses no more Confidential Information of the disclosing party than is reasonably necessary in order to respond to the required disclosure.
7. WARRANTIES.
Refinery Affiliate Warranty. Refinery Affiliate represents and warrants that: (i) the System will contain the functions and perform substantially as described in the applicable Order Form; and (ii) Refinery Affiliate shall deliver the Services in compliance with all applicable laws and regulations. Refinery Affiliate’s only liability, and Client’s exclusive remedy, for any breach of the warranty in (i) is that, if reported to Refinery Affiliate in writing, Refinery Affiliate will promptly correct the non-conformity.
Warranty Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED FOR IN SECTION 7.A., THE SOFTWARE, SYSTEM, ITS INTERFACES, ANY RELATED EQUIPMENT, THE SERVICES AND ANY MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE.
8. TERMINATION; DEFAULT; REMEDIES
Term. The term of the Services subscription is set forth in the applicable Order Form. This TOS shall remain in effect until the Order Form has expired or been terminated. This TOS and any subscription may be terminated only in accordance with Section 8.b. below.
Termination. Either party may terminate an Order Form only if the other party materially breaches the Order Form or TOS and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party. In the event that Client elects to terminate an Order Form due to Refinery Affiliate’s uncured material breach pursuant to this Section 8.b., Refinery Affiliate shall, at the request of Client, refund a pro-rata portion of the fees paid in advance by Client under the terminated Order Form, such pro-rata portion being determined based on the time remaining attributable to the time period covered by the fees paid in advance under the terminated Order Form. In the event Refinery Affiliate terminates an Order Form due to Client’s uncured material breach, Client shall immediately pay all outstanding fees owed, including all unpaid fees applicable to the Term. Under no circumstances shall Client be permitted to terminate an Order Form for convenience. The remedies contained in this Section 8 are cumulative and in addition to all other rights and remedies available hereunder, by operation of law, or otherwise, except as expressly excluded hereunder.
Requirements Upon Termination. Upon termination of an Order Form for any reason:
Client shall promptly pay to Refinery Affiliate all outstanding amounts due and shall return copies of all Materials;
all rights granted by Refinery Affiliate under such Order Form shall cease and Client shall immediately cease any use of the System, the Software and the Services; and
upon payment in full of all amounts due, and upon Client’s request within 90 days after the effective date of termination or expiration of such Order Form, Refinery Affiliate shall return or destroy the Client Data related to such Order Form then stored on the System. Notwithstanding the foregoing, if an Order Form terminates for any reason, Refinery Affiliate (i) may retain one copy of Client Data solely for archival, audit, disaster recovery, legal or regulatory purposes and (ii) will not be required to search archived electronic back-up files of its computer systems for Client Data in order to purge the Client Data from its archived files; provided, however, that Refinery Affiliate must maintain confidentiality of the retained Client Data under the applicable Order Form as if such Order Form were still in effect.
9. LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND REGARDLESS OF THE FORM OF ACTION, IN NO EVENT WILL EITHER PARTY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF REPUTATION OR COSTS OF SUBSTITUTE SERVICES) ARISING OUT OF OR RELATING TO THE SERVICES, THE SYSTEM, THE SOFTWARE, OR AN ORDER FORM, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THEREOF OR IS NEGLIGENT. WITH THE EXCEPTION OF CLIENT’S PAYMENT OBLIGATIONS FOR FEES UNDER THE ORDER FORM, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY (AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS) SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CLIENT TO Refinery Affiliate IN THE YEAR IN WHICH THE CLAIM AROSE.
10. INDEMNIFICATION
Refinery Affiliate’ Indemnification of Client. Refinery Affiliate shall defend and hold harmless Client and its respective directors, officers and employees (the “Client Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party against Client Indemnified Parties to the extent that it is based on a claim that the Services infringe any third party copyright, trademark, trade secret or other intellectual property right, and Refinery Affiliate shall indemnify Client Indemnified Parties against all reasonable attorney’s fees incurred by and damages finally awarded or settled against Client in such claim. Such indemnity, however, excludes any claims that arise or result from (i) Client Data, (ii) Client’s use of the Services or System in combination with equipment, software or services not provided, recommended or furnished by Refinery Affiliate, provided that no indemnification claim would have arisen but for such combination; (iii) Client’s use of the Services or System that materially violates an Order Form or applicable law, regulation of any governmental authority or self-regulatory agency or authority; or (iv) Client’s use of the Services, the Software or the System in a manner for which they were neither designed nor contemplated. Upon written notice of a claim that the Services infringe a third party’s copyright, trademark or trade secret or intellectual property right, Refinery Affiliate may, at its option and expense (i) modify or replace the Services to make them non-infringing, (ii) procure any rights from the third party necessary to provide the Services, or (iii) terminate the applicable Order Form and provide a pro-rata refund of fees paid by Client applicable to the remainder of the Term.
Client Indemnification of Refinery Affiliate. Client shall defend, hold harmless and indemnify Refinery Affiliate and its respective directors, officers and employees (the “Refinery Affiliate Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party or government agency against Refinery Affiliate Indemnified Parties to the extent that any such claim, suit or proceeding is based on, related to, or arises out of, Client Data. Client shall pay all costs incurred by and damages finally awarded or settled against Refinery Affiliate, including reasonable attorneys’ fees actually incurred by Refinery Affiliate.
Conditions for Indemnification. The party seeking indemnification under this Section 10 (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) of any claim, suit or proceeding for which indemnification may be sought; provided, however, that any failure by the Indemnified Party to provide prompt written notice as required by this Section shall excuse the Indemnifying Party only to the extent that it is prejudiced thereby. The Indemnified Party shall (unless prohibited by law, regulation or a court proceeding) cooperate with the Indemnifying Party with regard to the defense of any suit or threatened suit. The Indemnifying Party shall have full control of any such claim, proceeding or suit and the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment that may be entered, except that it may not settle the matter in a manner that imposes any liability on the Indemnified Party without the Indemnified Party’s consent. Notwithstanding the foregoing, the Indemnified Party may, at its option and its own expense, hire its own counsel to advise it with respect to any such claim, subpoena or suit.
11. GENERAL
Assignment. Except for an assignment pursuant to a merger, acquisition or sale of a party’s business or assets, or any similar transaction regardless of form, neither party may assign an Order Form or this TOS without the other party’s written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 11.a. shall be void ab initio. Each Order Form and this TOS shall be binding upon each party’s successors and permitted assigns.
Governing Law; Venue. Each Order Form and any dispute arising thereunder shall be governed by and construed in accordance with the laws of the State of Utah without regard to any conflicts of laws provisions or any other provision of law that would permit or mandate the application of the substantive laws of any jurisdiction other than the the State of Utah, and shall be subject to the exclusive jurisdiction of the state and federal courts located in Salt Lake City, Utah.
Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of their respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”), including without limitation fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures (through denial of service, worms, telecommunications problems or the like), equipment failures, computer hackers or other causes that are beyond a party’s reasonable control. With the exception of Sections 3, 5, 6, 7, 9, and 10, all of which shall continue to obligate the parties throughout the Force Majeure Event, performance under this TOS and any applicable Order Form shall be suspended for both parties throughout the duration of the Force Majeure Event. If any such suspension of performance exceeds thirty (30) days, the non-affected party may, at its option, terminate an Order Form upon notice to the affected party.
Export Control Restrictions. Client shall comply with all U.S. export control laws and regulations in its use of the System, the Software, the Services and Materials and shall not export, re-export or provide access to such items in violation of such export control laws and regulations.
Entire Agreement; Modifications; No Waiver. Each Order Form, which includes (i) the exhibits and schedules attached thereto and (ii) this TOS and any policies, schedules, exhibits and attachments referenced herein, constitute the entire agreement between the parties with respect to the subject matter hereof, supersedes any and all existing agreements relating to the subject matter hereof, and may not be modified or amended except by a written instrument signed by both parties. No failure or delay in exercising any right, power or remedy under an Order Form shall operate as a waiver thereof, nor shall any single or partial exercise of any right under an Order Form preclude any other or further exercise thereof or the exercise of any other right.
Notices. All notices to be given or otherwise made to a party, in order to constitute valid notice under this TOS or under any Order Form, must be made in writing and specifically reference this Section 11.f., must be delivered by hand in person, or by express overnight courier service, or by registered or certified mail, postage pre-paid return receipt requested, and must be addressed to such party at the address set forth on the applicable Order Form or at such other address as may be hereafter designated in writing by such party. All such notices provided in accordance with this section shall be deemed delivered upon the earlier of actual delivery, or three (3) days after deposit in the mail or with a courier.
Severability. The provisions of an Order Form or this TOS or both shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. With respect to such provision, if any, of an Order Form or this TOS which is determined to be invalid, illegal, or unenforceable, the invalid, illegal, or unenforceable provision shall be modified so that it is valid, legal, and enforceable and to the fullest extent possible, reflects the intention of the Parties.
Counterparts. Each Order Form may be executed in counterparts, and in scanned, electronic, or tangible form, each of which shall be deemed an original, but together shall constitute one and the same instrument.
Independent Contractors. Each Order Form shall create an independent contractor relationship between Refinery Affiliate and Client. Neither party shall have any authority to act in any way as a representative of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures or the like by virtue of the provisions hereof.
Headings. The headings preceding the various paragraphs and subparagraphs of this TOS and each Order Form are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this TOS and/or Order Form or its terms.
Survival. The obligations under Sections 2.c., 3.b., 3.c., 5, 6, 7, 8, 9, 10, 11, 11.b., and 11.i. of this TOS and any other provision of this TOS or applicable Order Form that by its nature is intended to survive, shall survive the termination or expiration of such Order Form.
