Software Terms of Service

These RIOS Software Terms of Service (these “Terms”) are a legal agreement between RIOS Intelligent Machines, Inc. (“RIOS”) and the organization being provided with access to RIOS Software Services (“Customer”) pursuant to a Customer Order between Customer and RIOS or a RIOS authorized reseller (“Authorized Reseller”). In the event of a conflict between these Terms and a Customer Order, these Terms shall control. 

BY ACCESSING OR USING THE RIOS SOFTWARE OR SOFTWARE SERVICES (DEFINED BELOW) OR BY REGISTERING FOR ACCESS TO THE RIOS SOFTWARE OR SOFTWARE SERVICES, CUSTOMER IS AGREEING TO ENTER INTO AND BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE SUFFICIENT RIGHT TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR REGISTER FOR THE RIOS SOFTWARE OR SOFTWARE SERVICES.

Customer and RIOS agree as follows:

1. Definitions.
   1.1. “Customer Data” means any data, information or material that Customer, Users, subscribers or partners may disclose or submit in connection with these Terms.
   1.2 “Customer Order” means the form evidencing the subscription order for the Software Services between Customer and RIOS or a RIOS Authorized Reseller. 
   1.3 “Software Services” means the provision of access to the RIOS Software(s) to which a Customer has subscribed pursuant to a Customer Order. 
   1.4 “Documentation” means the then-current product descriptions, user manuals, technical specifications, and other guides made available from RIOS concerning the use, installation, tolerances, functional requirements, and other aspects of the RIOS Software. 
   1.5 “Intellectual Property Rights” means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary 
   1.6 “Subscription Term” means the period during which Customer is permitted to access and use the Software Services as set forth in the applicable Customer Order. 
   1.7 “RIOS Software” means the RIOS software application(s) to which a Customer has subscribed pursuant to a Customer Order.
   
   
2. Software Services. 
   2.1 Software Services Subscription. Subject to Customer’s compliance with these Terms and the applicable Customer Order, RIOS hereby grants to Customer, during the applicable Subscription Term, a non-exclusive, non-transferable, non-sublicensable, non-assignable license to remotely access and use the RIOS Software via the Software Services as provided in one or more Customer Orders. All access to and/or use of the RIOS Software and Software Services shall be strictly in accordance with these Terms and the applicable Customer Order. In the event of a conflict between these Terms and a Customer Order, these Terms shall control. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Services, and notify RIOS promptly of any such unauthorized use. Unless otherwise set forth in a Customer Order, the Software Services are deemed accepted upon delivery.

   2.2 Access and Users. Each user authorized by Customer to access the Software Services (each a “User”) will do so using a unique user identification name and password (“User ID”). Customer shall be responsible for ensuring the security and confidentiality of User IDs for all Users. User IDs may not be shared with any person other than the specific User to whom the User ID is assigned. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Services, and shall notify RIOS promptly of any such unauthorized use. The Software Services are made available through the Internet. Customer is solely responsible for acquiring, installing and maintaining all connectivity equipment, Internet and network connections, hardware, and other equipment necessary to access and use the Software Services. All information provided by Customer and each User when registering for the Software Services shall be accurate and complete.

   2.3 Updates. RIOS may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Embedded Software and the RIOS Software (“Updates“). RIOS may automatically install the Updates on any Embedded Software purchased by a Customer or the RIOS Software.

   2.4 RIOS Software Restrictions. Except as expressly permitted under these Terms, Customer shall not, and shall not assist, encourage, or enable any third party to, (a) interfere with or disrupt the integrity or performance of the Software Services in any manner; (c) attempt to gain unauthorized access to the Software Services or its related systems or networks; (d) remove, alter, or obscure any proprietary notices (including copyright notices) of RIOS or its licensors contained within the Documentation or displayed in connection with the Software Services; (e) modify or make derivative works of the Software Services; (f) duplicate, copy, translate, disassemble, decompile, reverse engineer or remanufacture the RIOS Software in whole or in part or otherwise attempt to derive the source code for the RIOS Software; (g) reverse engineer or access the RIOS Software or Software Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features or functions of the Software Services, or (iii) copy any ideas, features or functions of the Software Services; (h) otherwise use the RIOS Software or the Software Services except as expressly allowed under these Terms. 
   
   

3. Account Information and Data. As between Customer and RIOS, Customer retains ownership of all Customer Data. Customer acknowledges and agrees that RIOS may aggregate and anonymize data made available to RIOS in connection with the use of the Software Services (“Metric Data”) and may use such Metric Data on a non-personally identifiable basis for its own lawful purposes including, in order to improve its products and services, demonstrate the benefits of its products or services, and/or to better understand and predict market trends. In no case will RIOS use or disclose any Metric Data in any way that could identify Customer or any third party. The Data Processing Addendum available here and is incorporated into and made a part of these Terms
   
   
4. Proprietary Rights. Notwithstanding anything contained herein to the contrary, the RIOS Software, Software Services, and Documentation, and all worldwide Intellectual Property Rights therein and all updates or modifications thereto, are the exclusive property of RIOS and its licensors. All rights not expressly granted to Customer under these Terms are reserved by RIOS and its licensors. 
   
   
5. Term and Termination. These Terms shall remain in effect through the Subscription Term, unless terminated early as provided herein. RIOS may terminate the Subscription Term upon notice in the event that Customer is in breach of these Terms and fails to cure such breach within five (5) days from its receipt of notice thereof. In addition RIOS may suspend Customer’s access to and use of the Software Services during any period during which RIOS reasonably believes that Customer’s use of the Software Services is in violation of these Terms or the applicable Customer Order. 
   
   
6. Warranties. 
   6.1 Limited Software Warranty. RIOS warrants that the Software Services will perform materially in accordance with the Documentation and these Terms. RIOS does not warrant that the Software Services will be completely error-free or uninterrupted. If Customer notifies RIOS of a reproducible error in the Software Services that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, RIOS shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if RIOS is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate these Terms upon notice to RIOS. The warranties set forth in this section do not apply to or cover any Error caused by: (i) Customer or its Users; (ii) use of the Software Services in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Software Services, or (iv) any equipment, software, or other material utilized by Customer in connection with the Software Services contrary to the provider’s instructions.

   
   6.2 Third Party Sites. The Software Services may contain links to other websites or services operated by third parties (“Third Party Sites”). Such Third Party Sites are not under RIOS’ direction or control. Customer’s access to or use of these Third Party Sites is at Customer’s own risk and is subject to any terms and conditions presented to Customer by the operator of the Third Party Sites
   
   6.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, RIOS MAKES NO WARRANTIES CONCERNING THE SOFTWARE SERVICES AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
   
   

7. Authorized Resellers. IF CUSTOMER HAS PURCHASED A SUBSCRIPTION TO THE SOFTWARE SERVICES DIRECTLY FROM AN AUTHORIZED RESELLER, ANY CLAIM, COUNTERCLAIM, ACTION, DEMAND, OR DISPUTE ARISING UNDER THESE TERMS OR THE CUSTOMER ORDER SHALL BE BROUGHT SOLELY TO THE AUTHORIZED RESELLER AND NOT RIOS. RIOS SHALL HAVE NO OBLIGATION OR LIABILITY UNDER THESE TERMS DIRECTLY TO A RESALE CUSTOMER. RIOS SHALL BE PERMITTED TO ENFORCE THESE TERMS DIRECTLY AGAINST CUSTOMER EVEN IF CUSTOMER HAS PURCHASED A SUBSCRIPTION TO THE SOFTWARE SERVICES FROM AN AUTHORIZED RESELLER. 
   
   

8. Limitation of Liability. IN NO EVENT WILL RIOS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY PENALTIES TO WHICH CUSTOMER MAY BE SUBJECT, ARISING FROM OR RELATING TO THESE IN ANY WAY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF RIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
   
   

9. Governing Law. These Terms shall be governed by the laws of the State of California, excluding the application of its conflicts of law principles. The parties consent to exclusive jurisdiction and venue in the state and federal courts in Santa Clara County, California for actions related to the subject matter hereof. To the extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods 1980 (sometimes referred to as the Vienna Convention) does not apply to these Terms. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY ACTION ARISING OUT OF THESE TERMS, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS AND TORT CLAIMS.
   
   

10. General. The relationship of the parties established under these Terms is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and, except as expressly set forth in these Terms, neither party has the right or authority to assume or create any obligation on behalf of the other party. Customer shall not assign or transfer (including by sale, merger, operation of law, or otherwise) these Terms or any of the rights hereunder without the prior written consent of RIOS. These Terms are binding upon and inures to the benefit of the parties, and to their permitted successors and assigns. If a provision of these Terms is unenforceable, invalid, or illegal, then the intent of the parties is that (a) the validity, legality, and enforceability of the remaining provisions of these Terms remain in force and not be affected in any way, and (b) the unenforceable, invalid, or illegal provision remain in force, and be interpreted or reformed to accomplish the objectives of such provision, to the greatest extent possible under applicable law. No delay or failure of a party to exercise any rights, powers, or remedies, or to require satisfaction of a condition, will impair any such right, power, remedy, or condition, nor will any delay or omission be construed to be a waiver of any breach, default, or noncompliance under these Terms. No waiver or failure to enforce any provision of these Terms on one occasion constitutes a waiver of any other provision or of the same provision on any other occasion. To be effective, a waiver must be in writing signed by the party granting the waiver, and will be effective only to the extent specifically set forth in such writing. Terms constitute the final agreement between the parties and are the complete and exclusive expression of the parties’ agreement to the matters contained in these Terms. These Terms supersedes and merges all prior and contemporaneous understandings, agreements, and representations among the parties that may have related in any way to the subject matter of these Terms.