END-USER LICENSE AGREEMENT
Last Updated: May 4, 2023 (see previous versions).
Sections:
- Definitions
- Confidential Information
- User Content
- User Requirements
- Responsive Intellectual Property Rights
- User Usage and Restrictions
- Account management; Updates; Suspension of Access
- Term and Termination of Access
- Disclaimers; Limitation of Liability; Indemnification
- Jurisdiction/Governing laws
- Miscellaneous/Other terms
Thank you for choosing us to be your Response Management Solution—Responsive’s products, services and website (the “Services”). This End User License Agreement (this “EULA”) contains the terms under which RFPIO, Inc. d/b/a Responsive (“Responsive”, “we”, “us” and/or “our”) and its affiliates provide their Services to its Service visitors (“you”, “your”) and describe how the Services may be accessed and used.
1. DEFINITIONS
“Confidential Information” means the information of a Party (the “Disclosing Party”) that the other Party (the “Receiving Party”) receives in connection with the provision or receipt of the Services and which is proprietary to or confidential to the Disclosing Party including, without limitation, information relating to the Disclosing Party’s business, marketing plans, financial affairs and product development efforts, patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, business plans, agreements with third parties, services, strategy, trade secrets, know how, technical information, specifications, past, present and future operations, partner, client, and supplier identities, and other non-public information, whether tangible, intangible, visual, electronic or otherwise, together with notes, analysis, compilations, projections, and/or other documents prepared by either party, their directors, officers, employees, agents and representatives, based upon, containing or otherwise reflecting such information.
“Documentation” means the applicable training materials, user guides, publicly available marketing and/or proposal materials, and other similar information, or other documents disseminated under or governed by confidentiality obligations that pertain to the Software or
Services provided by Responsive, which may be updated by Responsive at any time without notice to include information about new features and incorporate feedback to help Responsive’s customers understand how to use the Software and Services.
“Personal Information” means any information relating to natural persons who can be identified or who are identifiable, directly from the information in question; or who can be indirectly identified from that information in combination with other information or as may otherwise be specified in applicable privacy laws. For example: names, email addresses, and inferences from other personal information that could create a profile about your preferences and characteristics.
“Software” means the proprietary product provided by Responsive as identified on an Order Form and subsequently made available to You by Responsive in accordance with this EULA.
2. CONFIDENTIALITY
2.1. Each party agrees not to disclose, duplicate, publish, release, transfer or otherwise make available to third parties, except Users, the other party’s Confidential Information without the other party’s prior written consent. Confidential information is the information which based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential to the Disclosing Party, including, with respect to you, your Content (as defined in Section 3 below) and Personal Information. Confidential Information of Responsive includes, non-public information relating to the Software, Services, Professional Services and Documentation. Confidential Information does not include information that the Receiving Party can document is: (i) previously known to the Receiving Party prior to disclosure by the Disclosing Party, without any obligation of confidentiality; (ii) is or becomes generally known
to the public without breach of a party’s confidentiality obligation under this EULA; (iii) rightfully received from a third party under no confidentiality obligation with respect to the Confidential Information; and (iv) was independently developed by a Party without use of the Disclosing Party’s Confidential Information.
2.2. Obligation to Protect Confidential Information. A Receiving Party will: (i) limit access and use of Disclosing Party’s Confidential Information to those of the Receiving Party’s employees and agents that require such access and use on a need-to-know basis in connection with the EULA; (ii) not disclose the Disclosing Party’s Confidential Information to third parties unless authorized pursuant to this Section; (iii) protect the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as required to exercise its rights or perform its obligations hereunder or as otherwise specifically permitted by the other Party.
2.3. Permitted Disclosures. The Receiving Party may disclose Disclosing Party’s Confidential Information:
(i) if and to the extent required by a governmental or regulatory authority or otherwise as required by applicable law, provided that the Receiving Party must first give the Disclosing Party notice of such compelled disclosure (except where prohibited by applicable law from doing so) and must use commercially reasonable efforts to provide the Disclosing Party, unless prohibited by applicable law, with an opportunity to take such steps as desired by the Disclosing Party to challenge or contest such disclosure or seek a protective order. Thereafter, the Receiving Party may disclose the applicable Confidential Information, but only to the extent required by the applicable governmental or regulatory authority or applicable law and subject to any protective order that applies to such disclosure;
3. USER CONTENT
3.1. Use of Content and Privacy.
In the course of using the Services, you may submit content to Responsive (including your Personal Information and the Personal Information of others) or third parties may submit content to you through the Software (your “Content”). We know that by giving us your Content, you are trusting us to treat it appropriately. Responsive’s [Privacy Policy – Responsive], together with any Service-specific data use policies, privacy statements and privacy notices (collectively, “Privacy Policies”), detail how we treat your Content and Personal Information and we agree to adhere to those privacy policies. You in turn agree that Responsive may use and share your Content in accordance with our Privacy Policy.
3.2. User Content Ownership.
3.2.1. The Services display content provided by others that is not owned by Responsive. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Responsive is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
3.2.2. Limited License to Your Content. You grant Responsive a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by Responsive’s Privacy Policy. This license for such limited purposes continues even after you stop using our Services, though you may have the ability to delete your Content in relation to certain Services such that Responsive no longer has access to it. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide Responsive with feedback about the Services, we may use your feedback without any obligation to you pursuant to Section 3.4 below.
3.3. Content Review.
You acknowledge that, in order to ensure compliance with legal obligations, Responsive may be required to review certain content submitted to the Services to determine whether
it is illegal or whether it violates this EULA (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or this EULA. However, Responsive otherwise has no obligation to monitor or review any content submitted to the Services.
3.4. Feedback.
If you provide suggestions, comments and feedback regarding the Services (“Feedback”) you covenant that any Feedback provided by Users/Customer, including, in each case all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Responsive or its licensors. Customer (including its Users) hereby assigns to Responsive all of its rights, title, and interest in and to any Feedback, including all intellectual property rights therein or relating thereto. The Parties acknowledge and agree that the Feedback shall not contain any Content.
3.5. Third-Party Resources.
Responsive may publish links in its Services to internet websites maintained by third parties. Responsive does not represent that it has reviewed such third-party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
4. USER REQUIREMENTS
4.1. Legal Status.
None of the Services are intended for use by individuals denoted as minors in the country where they reside. If you are a minor or do not have the power to form a contract with Responsive, you may not use the Services. If you are using the Services on behalf of a business entity, you warrant that the business is validly formed and existing under the laws of your jurisdiction of formation and that you have duly authorized your agent to bind you to this EULA.
4.2. Embargoes.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from Responsive.
5. RESPONSIVE INTELLECTUAL PROPERTY RIGHTS
5.1 Intellectual Property., Responsive will provide User with a non-exclusive, non-transferable, revocable license to use the Software and Services in accordance with the Documentation. Responsive shall exclusively own and retain all rights, title and interest in and to the Software, Services, and Documentation, including all related Responsive Intellectual Property Rights or other similar rights, which shall not include Customer Data. Responsive’s Intellectual Property Rights shall extend to all Updates, customizations or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of Software and Services developed by Responsive at any time.
6. USER USAGE AND RESTRICTIONS
6.1 Permitted Usage. We provide the Responsive product to enable Users to create, share, upload or attach information to, and edit “Requests for Proposal (RFPs)” and “Proposals” that are stored on the Service. “Users” are those individuals that are authorized by Responsive Customers to use the Service solely for the purpose of participating in RFPs and Proposals. When you receive access credentials from Responsive’s Customer, you may use the Service solely to view and submit content to RFPs and Proposals.
6.2 Restricted Usage. User specifically agrees not to: (a) “frame,” distribute, resell, or permit access to the Service by any third party; (b) permit multiple end users to access the Service using shared login credentials (i.e., a shared email address and password); (c) use the Service other than in accordance with the instructions or documentation we provide and in compliance with applicable federal, state, and local laws; (d) interfere with the Service or disrupt any other user’s access to the Service; (e) reverse engineer, attempt to gain unauthorized access to the Service, or attempt to discover the underlying source code or structure of the Service; (f) submit to the Service any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or any form of “spam”; (g) submit to the Service any disabling code, malicious code, virus or other malware; (h) engage in data scraping or data extraction outside of the ordinary features of the Service; or (i) register for or use our Service to monitor or test the availability or performance of the Service, or for other benchmarking or competitive purposes.
6.3 Restricted Data. The Software is not designed to host, process, or store sensitive Personal Information such as Personal Health Information. Both Customer and User are responsible for ensuring that the use of the Software and provision of any such Personal Information is in compliance with applicable Privacy Laws. User represents that it has obtained all necessary notice, consents, and authority to upload any such Personal Information into the Software.
7. ACCOUNT MANAGEMENT; UPDATES; SUSPENSION OF ACCESS
7.1 Account Management– Responsive will provide you access to, and use of, the Software, Services, and Documentation by enabling an account for you to access through a web browser (herein “Account”). You will designate individuals and authorize them to manage, use, and support the Account, including, the creation of usernames and passwords for Users. You are solely responsible for maintaining the status of your Users and the confidentiality of all usernames, passwords, and other Account access information under its control. You will contact Responsive promptly if Account information is lost, stolen, or disclosed to an unauthorized person or any other breach of security in relation to its passwords, usernames, or other Account access information may have occurred or is likely to occur.
7.2 Changes and Updates– Responsive will make improvements to the Software and Services and make updates to the Software and Services as deemed appropriate by Responsive and may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and Services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Software and Service. If you do not cease using the Software and Service, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Software and Service and you agree to promptly install any Updates Responsive provides.
7.3 Suspension of Software Access. We may immediately suspend or deny access to or use of all or any part of the Software or Services to you or one or more of your Users, without any liability to you or others, if (i) we are required to do so by law or court order; or (ii) you have, your Affiliate has or your Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) has (A) accessed or used our Software or Services or Responsive Materials in violation of this EULA, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Software or Services, or (C) otherwise failed to comply with this EULA.Unless we have exercised our right to terminate this EULA pursuant to Section 8, we will promptly restore access to the Software, Services and Responsive Materials as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 8 or any other rights or remedies under this EULA, at law or in equity.
8. TERM AND TERMINATION OF ACCESS
8.1 Term. The term of this EULA will begin on the date of your first use of the Software to access a project and will terminate upon the conclusion of all active projects in which you participate. After termination, any future projects in which you participate will be subject to the version of the EULA in effect at the time you start participating in a future project.
8.2 Termination of Software Access. Responsive may terminate this EULA, at any time, for breach of a material obligation, if, after providing written notice to You of such breach, You fail to cure such breach within ten (10) days thereafter; provided, however, such cure period will not apply with respect to payment breaches. Sections 2, 3, 6.2 and 9.2 of this EULA , will survive the termination or expiration of this EULA.
9. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION
9.1 DISCLAIMER OF WARRANTIES
TO THE EXTENT NOT PROHIBITED BY LAW, RESPONSIVE HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS OF
ANY KIND, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE SERVICE, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND QUALITY OF SERVICE. RESPONSIVE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICE OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR
FREE. YOU UNDERSTAND AND AGREE THAT IF YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS, OR SERVICES FROM THIS WEBSITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT, INCLUDING LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEM.
9.2 LIMITATION OF LIABILITY
Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, UNDER NO CIRCUMSTANCES WILL RESPONSIVE OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOST REVENUE, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF USE OF MONEY OR USE OF SERVICES, INTERRUPTION IN THE USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF THE PURPORTED BREACH OR FAILURE OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL RESPONSIVE’S LIABILITY UNDER THIS EULA EXCEED THE SUBSCRIPTION FEES RECEIVED BY Responsive FROM THE CUSTOMER ENGAGING IN THE SERVICES FOR WHICH YOU HAVE BEEN GRANTED ACCESS DURING THE THREE (3) MONTHS PRECEDING THE APPLICABLE CLAIM, IN EACH CASE, WHETHER OR NOT Responsive HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 INDEMNIFICATION
9.3.1 You agree to indemnify, hold harmless and defend Responsive, its Affiliates and the respective officers, directors, employees, agents, successors and assigns from and against any claims or suits, including reasonable attorneys’ fees and expenses, which arise or result from any Third Party Claim alleging that your Data infringes the Intellectual Property Rights (“IP rights”) of a third party, your breach of any terms and conditions of this EULA, or your use of the Software or Services in violation of any applicable law.
9.3.2 Responsive agrees to indemnify, hold harmless and defend you from and against any claims or suits, including reasonable attorneys’ fees and expenses, which arise or result from any claim
brought against you alleging that any Software or Services infringes or misappropriates a third party’s U.S. registered patent right, trademark, or copyright (an “Infringement Claim”). Responsive’s indemnity obligation under this Section shall not extend to claims that arise from: (a) an unauthorized modification of the Software or Services by you (b) customized portions of the Services designed in accordance with written specifications provided by you where the Software or Services would not be infringing but for Responsive’s compliance with such written specifications; (c) the failure on your part to install an Update to the Software or Services provided by Responsive, such Updates which require your consent or installation permission, that would have avoided the actual or alleged Infringement Claim; (d) the combined use by you of the Software or Services with other components, products, or services not provided by Responsive where the Software or Services would not be infringing but for such combination for such combination is not pre
approved by Responsive and is not provided by Responsive during the then current Subscription Term; or (e), analytic applications, algorithms or other applications or programming built by you or created by or on behalf of you without Responsive’s approval.
9.3.3 For any claim covered by Section 9.3.2, we will, at our election, either: (A) procure the rights to use that portion of the Software or Services alleged to be infringing; (B) replace the alleged infringing portion of the Software or Services with a non-infringing alternative; (C) modify the alleged infringing portion of the Software to make it non-infringing; or (D) if none of (A), (B), or (C) are commercially reasonable, terminate this EULA and provide you a pro-rata refund of the Fees paid for the Software and Services under this EULA based on the terminated portion of the current
year of this EULA.
9.3.4 Indemnification – Process. The obligations under Sections 9.3 (1) – (3) will apply only if the party seeking defense or indemnity: (i) gives the other party prompt written notice of the claim; (ii) permits the other party to control the defense and settlement of the claim; and (iii) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment by the other party or performance by the other party of an affirmative act (other than the payment of money) without the prior written consent of the other party.
9.4 THE FOREGOING ARE THE PARTIES’ SOLE AND EXCLUSIVE OBLIGATIONS, AND THE PARTIES SOLE AND EXCLUSIVE REMEDIES FOR INDEMNIFICATION.
10. JURISDICTION/GOVERNING LAWS
This EULA and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.
11. MISCELLANEOUS/OTHER TERMS
11.1 All notices under this EULA will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service to Customer at the addresses listed on the current Order Form or SOW or to Responsive at the address listed herein; Attn: Chief Executive Officer, with a copy to [email protected]; and upon receipt, if sent by certified or registered mail, return receipt requested.
