Note: For all new customer contracts effective March 17, 2022 and afterwards the below MSA applies. For all existing contracts, the Terms and Conditions site referenced in your service order applies.

Master Subscription and Services Agreement (MSA)

This Master Subscription and Services Agreement (this “Agreement”) together with each Order Form governs Customer’s (as defined on the Order Form) use of and access to the Software and such other Additional Services provided by Raintree Systems, Inc., a California corporation, with a principal place of business at 30650 Rancho California Road, Suite 400 #208, Temecula CA 92591 (“Raintree”).  This Agreement takes effect when Customer executes the Order Form or, if earlier, when Customer uses or accesses the Software, the Additional Services or such other Raintree services (the “Effective Date”).  Raintree and Customer are collectively referred to as the “Parties” and individually as a “Party” in this Agreement.  Please see Section 1 of this Agreement for definitions of certain capitalized terms used in this Agreement.

Recitals.  Raintree is the owner of certain proprietary software, more specifically described on Customer’s Order Form.  Raintree desires to provide Customer access and Customer desires access to the Software, Additional Services, and such other services and products set forth on the Order Form for a specific Term.  

NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth below, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which consideration is hereby accepted and acknowledged, the Parties, intending to be legally bound, agree as follows.

1. Definitions

  1. Additional Services” shall mean such consulting, training and professional services provided by Raintree to Customer as referred to in Section 7(c) hereof, the Order Form, and any applicable statement of work.
  2. "Authorized User" shall mean Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Software and the Subscription to the Software under the rights granted to Customer pursuant to this Agreement and as more specifically set forth on an Order Form.
  3. Customer” shall mean the entity designated as the customer in the Order Form.
  4.  “Documentation” shall mean Raintree’s standard and then current training materials, user manuals, handbooks, guides and technical specifications for the Software. 
  5.  “Fees” shall have the meaning set forth in the Order Form and Section 5(a) hereof.
  6. Increase in CPI” shall mean the unadjusted percentage increase, if any, in the Consumer Price Index for All Urban Consumers: U.S. City Average, All Items (“CPI-U”) for the month of the Effective Date when compared to the CPI-U for the Reference Month for the preceding calendar year, based upon the specific CPI-U data published by the United States Bureau of Labor Statistics (“BLS”) on its website located at https://www.bls.gov/cpi/ (or any BLS successor website).
  7. Maintenance” shall mean Raintree’s standard and then current maintenance and support for the Software as more specifically set forth on the Order Form and Section 7(b) hereof.  
  8. Order Form” shall mean the Raintree order form that sets forth the Customer name and contact information, Subscription, Software, payment information, term, and such other terms and conditions, attached hereto and incorporated herein by this reference, and shall be subject to and governed by the terms and conditions of this Agreement.   
  9. Software” shall mean the then-current version (inclusive of any Updates, Upgrades or modifications thereto) of those computer program modules and accompanying graphical user interfaces available solely through this Agreement and as described in the Order Form.
  10. "Standard Implementation Scope of Services" shall mean the standard and then current scope of implementation services provided by Raintree to Customer as referred to in Section 7(e) hereof and the Order Form.
  11. "Standard Integration Scope of Services" shall mean the standard and then current scope of integration services provided by Raintree to Customer as referred to in Section 7(d) hereof and the Order Form.
  12. Subscription” shall mean the paid subscription to the Software pursuant to Section 2(a)(i) hereof via a Raintree controlled access website and as more specifically described in the Documentation and Order Form.
  13. The “Term” and any renewal rights of this Agreement shall have the meaning set forth in Subsection 10(a) hereof and the Order Form.
  14.  “Updates” shall mean updates, patches, bug fixes, feature fixes and minor software enhancements and compatibility (but excluding Upgrades) of the Software that Raintree releases commercially and as determined by Raintree in its sole discretion.
  15. Upgrades” shall mean a new version of the software that offers a significant change or major improvement over the current version of the Software and as determined by Raintree in its sole discretion.
2. Access and Use; Intellectual Property Ownership and Rights; Feedback
  1. Subject to and conditioned on Customer’s timely payment of Fees and compliance with the terms and conditions of this Agreement, Raintree hereby grants to Customer and its Authorized Users the restricted, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Software and Documentation via the Subscription solely for Customer’s internal business purposes and solely as listed in the Order Form. 
  2. Customer acknowledges that all right, title, and interest in and to the Documentation and the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Raintree IP”), is, and at all times shall remain, the sole and exclusive property of Raintree.  Except for the rights to access and use the Software and Documentation as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Software or the Documentation.
  3. If Customer or any of its employees, consultants, agents or contractors sends or transmits any communications or materials to Raintree by mail, email, telephone, or otherwise, suggesting or recommending changes to the Raintree IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Raintree is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.  Customer hereby assigns to Raintree on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Raintree is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Raintree is not required to use any Feedback.
  4. Customer shall not use the Software or the Subscription for any purposes beyond the scope of the access granted in this Agreement and shall only use the Software in compliance with this Agreement and the privacy policy (“Privacy Policy”) (located at https://7230184.hs-sites.com/privacypolicy).  Customer shall not at any time, attempt, directly or indirectly, to allow any third party to attempt to (i) copy, modify, or create derivative works of the Software, Subscription or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, Subscription or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, Subscription or Documentation, in whole or in part; (iv) remove any proprietary notices from the Software, Subscription or Documentation; (v) use the Software, Subscription or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Software, Subscription or Documentation to develop a similar or competing product, software or service;  (vii) provide access to the Software, Subscription or Documentation to any person or third party in order to build or assist in building a competitive service or software to the Software, Subscription or Documentation or to benchmark with a non-Raintree service or software; (viii) use the Software, Subscription or Documentation on behalf of, or to provide any product or service to, third parties; (ix) use the Software or Subscription to transmit or display any false, inaccurate, or unlawful information; or (x) violate the terms and conditions of this Agreement or any terms and conditions posted on the Software, including, without limitation, any Terms of Use or Privacy Policy (collectively, “Prohibited Conduct”).  
  5. Raintree reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Raintree IP. 
  6. Notwithstanding anything to the contrary in this Agreement, Raintree may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Software, Maintenance or the Subscription if: (i) Raintree determines that (A) there is a threat or attack on any of the Raintree IP; (B) Customer's or any Authorized User's use of the Raintree IP disrupts or poses a security risk to the Raintree IP or to any other customer or vendor of Raintree; (C) Customer, or any Authorized User, is using the Raintree IP for fraudulent or illegal activities; (D) Customer, or any Authorized User, is violating the terms of this Agreement, the Terms of Service or the Privacy Policy; (E) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (F) Raintree’s provision of the Software, the Maintenance or the Subscription to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Raintree has suspended or terminated Raintree’s access to or use of any third-party services or products required to enable Customer to access the Subscription, the Maintenance or the Software; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Raintree shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Subscription, the Maintenance or the Software following any Service Suspension. Raintree shall use commercially reasonable efforts to resume providing access to the Subscription, the Maintenance or the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Raintree will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
  7. Compliance with HIPAA and HITECH Act Patient Information Requirements.  Raintree shall maintain Customer’s data within the physical security controls in compliance with Federal Law and Regulatory Requirements as defined within the Health Insurance Portability and Accountability Act of 1996 and American Recovery and Reinvestment Act of 2009’s Health Information Technology for Clinical and Economic Health Act (“HITECH”).
3. Customer Responsibilities; Anti-Virus; Customer Information; Confidentiality
  1. Customer is responsible and liable for all uses of the Software, Documentation, Maintenance and the Subscription or resulting from access provided by Customer to any Authorized User or third party, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.  Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software, Documentation, Maintenance and the Subscription and shall cause Authorized Users to comply with such provisions.  
  2. Customer shall be solely responsible for gaining access to the Software, and Raintree shall bear no responsibility or liability for problems arising from or related to Customer’s access.  
  3. During the Term, Customer will deploy, at its sole expense, a reputable industry recognized non free-ware anti-virus solution. Such anti-virus solution must automatically obtain daily virus definition updates and load such updates on all of Customer’s computer and other devices. Raintree reserves the right to audit, at any time, Customer’s computer and other devices to determine compliance with this Section 3(c). If Customer fails to adhere to this  Section 3(c), Raintree may deny Customer’s access to Raintree’s systems and the Subscription for those devices that do not have anti-virus with active automatic updates until such time as Customer deploys an anti-virus solution pursuant to this Section 3(c).
  4. Customer will retain ownership of all right, title and interest in and to all Customer data, information and other content provided by Customer or any of its Authorized Users that is input and stored in Software (collectively, “Customer Information”).   During the Term, Raintree may receive access to the Customer Information.  Customer represents and warrants that it has complied with all applicable data protection laws and will obtain, all right, title, and interest in and to any Customer Information provided hereunder, which may be necessary for Raintree to process such Customer Information for the purposes set forth herein, including in connection with the analysis and monitoring of Customer’s and its Authorized Users’ use of the Software and the Subscription and in connection with the legitimate non-commercial business and information security operations of Customer.   Raintree will follow industry standards to protect the security and integrity of the Customer Information, and  it will provide Customer reasonably  requested documentation of these processes and any security reviews or audits made of Raintree’s systems.  Raintree will use the Customer Information solely to provide the Subscription, Software, and associated services under this Agreement.  
  5. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that is marked, designated or otherwise identified as "confidential" or by its nature should reasonably be deemed to be "confidential” (collectively, "Confidential Information").  Customer Information shall be deemed Customer Confidential Information and the Software, the Fees and Documentation shall be deemed Raintree Confidential Information.  Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain, (b) known to the receiving Party at the time of disclosure, (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party, or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees, contractors or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and if requested by the disclosing Party, certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the effective date of the termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  6. In accordance with Section 10(c) of this Agreement and for a period of ninety (90) days after the termination of this Agreement, Raintree will use commercially reasonable efforts to make available to Customer all Customer Information contained in the Software and thereafter, Raintree will use commercially reasonable efforts delete such Customer Information.  Upon Customer’s request and at Customer’s sole cost and expense, including the payment to Raintree of Raintree’s then current rates for time and materials engagements, Raintree will provide reasonable assistance services to assist Customer in the transfer and migration of the Customer Information to Customer or another third party provider, for a period not to exceed 90 days following the expiration or termination of this Agreement for any reason.  Notwithstanding anything to the contrary contained herein, Customer may elect to enter into a separate Order Form with Raintree for the hosting of a database (“Database Hosting”) of any Customer Information contained in the Software as of the expiration or termination of this Agreement for look up purposes only and subject to the terms and conditions set forth in such Order Form.  Section 7(a) and 7(b) of shall not apply to any Database Hosting.  FURTHER, ANY SUCH DATABASE HOSTING SHALL BE PROVIDED "AS IS" AND RAINTREE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE AND RAINTREE MAKES NO WARRANTY OF ANY KIND THAT RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.      
  7. Raintree may create statistical reports, benchmarking and other data reports and solutions relating to the Software or the Subscription utilizing transaction data and usage data, so long as such reports and solutions contain only anonymous data that does not identify Customer or any specific transaction data, and such reports may be reported, delivered and sold publicly to third parties.  Raintree may, from time to time, offer benchmarking programs to facilitate deeper analysis into commercial trends for companies wishing to participate.  If applicable, Raintree will use commercially reasonable efforts to operate benchmarking programs and data reports and solutions according to reasonable industry standards that protect the confidentiality of each Customer’s information.  

4. Upgrades and Updates

During the Term and provided Customer is current on all of its Fees, Raintree will provide Customer with Updates without additional fees and will provide Upgrades, with or without additional fees, as determined by Raintree in its sole discretion.  To the extent there are any fees associated with such Upgrade, the Parties will enter into a written amendment setting forth the pricing and description of the applicable Upgrade.  The Software may be updated automatically once a new Update or Upgrade is available. Updates and Upgrades will become part of the Software and will be subject to the provisions of Section 2 above and the other provisions of this Agreement.

5. Fees and Payment

  1. Fees.  Customer agrees to pay to Raintree the fees and costs set forth on the Order Form, including, as applicable, the fees and costs for access to the Software and Subscription, Additional Services and any other products and services (the “Fees”) without offset or deduction.  
  2. Invoicing.   Raintree will transmit invoices for the Fees to Customers in accordance with the Order Form and the applicable payment authorization form.  Unless otherwise set forth on the Order Form, all Fees are due and payable within thirty (30) days of the invoice date.  If Customer fails to make any payment when due, without limiting Raintree’s other rights and remedies: (i) Raintree may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Raintree for all reasonable costs incurred by Raintree in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days beyond the due date, Raintree may suspend Customer's and its Authorized Users' access to any portion or all of the Software, Maintenance or Subscription until such amounts are paid in full.  
  3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, value added, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder whether or not included on the initial invoice or assessed thereafter, other than any taxes imposed on Raintree’s net income.
  4. Travel Expense Recovery.  Any pre-approved and reasonable travel and entertainment expenses incurred on behalf of this Agreement will be charged-back to Customer without markup and will be payable within 30 days of a correct invoice.

6. Warranties; Disclaimer of Warranties

  1. Function.  For the period of one hundred and eighty (180) days from the Effective Date, Raintree warrants that the Software when accessed in accordance with the Documentation and the terms and conditions of this Agreement will perform materially as described in the Documentation.  In the event of breach of the warranty in this Subsection 6(a), Raintree will promptly repair the Software or replace it with software of substantially similar functionality.  The remedies set forth in this Subsection 6(a) are exclusive and Customer's sole remedies and Raintree’s sole liability under the limited warranty set forth in this Section 6(a).
  2. Customer Warranties.  Customer represents and warrants to Raintree that (i) Customer has full right, title and interest in and to the Customer Information it supplies to Raintree, (ii) the Customer Information supplied by Customer to Raintree hereunder is accurate and complete; (iii) Customer and Customer’s use of the Software will comply with all applicable federal, state, county and local laws, ordinances, orders, codes, rule and regulations; (iv) Customer will use the Software strictly in accordance with the terms of this Agreement; (v) Customer will not engage in any Prohibited Conduct; (vi) no Customer Information will infringe the intellectual property rights or other rights of any third party; and (vii)  Customer has secured all necessary licenses and/or authorizations for Raintree to use the Customer Information pursuant to the terms of this Agreement. 
  3. Right to Do Business.  Each Party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement. 
  4. Right to Grant License.  As of the Effective Date, Raintree hereby warrants that it has the right to grant to Customer access and use of the Software in accordance with this Agreement.  
  5. Disclaimers.  EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 6, RAINTREE IP (INCLUDING THE SOFTWARE AND SUBSCRIPTION) IS PROVIDED "AS IS" AND RAINTREE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(A), RAINTREE MAKES NO WARRANTY OF ANY KIND THAT THE RAINTREE IP (INCLUDING THE SOFTWARE AND SUBSCRIPTION), OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 
  6. Raintree provides no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Software made by anyone other than Raintree, unless Raintree approves such modification in writing; or, (ii) use of the Software in combination with hardware, software, or other technology not provided by Raintree: (A) that is forbidden by the Documentation; or, (B) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
  7. Customer shall not use the Software or Subscription (directly or indirectly) to conduct or solicit the performance of any business or activity which is tortuous or prohibited by law. 

7. Maintenance; Implementation Services; Professional Services

  1. Service Level Agreement (“SLA”). Subject to the terms and conditions of this Agreement, Raintree shall use commercially reasonable efforts to maintain operation of the Software on a 24-hours per day, 365 days per year basis in accordance with the SLAs set forth in Exhibit A, attached hereto and incorporated herein by this reference. 

  2. Support and Maintenance. Subject to the terms and conditions of this Agreement, Customer shall have access from time to time to the support services and Maintenance set forth in Exhibit B, attached hereto and incorporated herein by this reference.  

  3. Additional Services.  Subject to the terms and conditions of this Agreement, Raintree shall provide any Additional Services to Customer as described on the Order Form.

  4. Integration Services.  Subject to the terms and conditions of this Agreement, Raintree shall provide the Standard Integration Scope of Services to Customer as described on the Order Form.

  5. Implementation Services.  Subject to the terms and conditions of this Agreement, Raintree shall provide the Standard Implementation Scope of Services to Customer as described on the Order Form.

  6. Contractors.  Raintree may use contractors to perform all or part of the Standard Integration Scope of Services, Standard Implementation Scope of Services, Additional Services or Maintenance, or such other services.  

8. Indemnity

  1. Raintree Indemnification. 
    1. Raintree shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Software or any use of the Subscription in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets. 
    2. If such a claim is made or appears possible, Customer agrees to permit Raintree, at Raintree’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Raintree determines that neither alternative is reasonably available, Raintree may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription for the period from the effective date of such termination through the end of the period for which such unused fees where prepaid. 
    3. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) Customer’s violation of this Agreement; (B) revisions to the Software made by a party other than Raintree or Raintree’s designee, or without Raintree’s written consent; (C) Customer Information; (D) Customer’s failure to incorporate Updates, Upgrades or modifications that would have avoided the alleged infringement; (E) use of the Software in combination with hardware, software, or technology not provided by Raintree: (i) that is specifically forbidden by the Documentation; or (ii) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
  1. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Raintree’s option, defend Raintree from and against any Losses resulting from any Third-Party Claim that the Customer Information, or any use of the Customer Information in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any other Third-Party Claims based on Customer's or any Authorized User's (i) gross negligence or willful misconduct; (ii) use of the Software or Subscription in a manner not authorized by this Agreement; (iii) use of the Software or Subscription in combination with data, software, hardware, equipment or technology not provided by Raintree or authorized by Raintree in writing; (iv) modifications to the Software or Subscription not made by Raintree; (v) failure to comply with all applicable federal, state, and local laws, regulations, ordinances, codes, rule and orders; or (vi) use of the Software or Subscription in an infringing manner or in a manner that results in a Third-Party Claim of  breach of warranty, libel, slander, invasion of privacy or false advertising. 
  2. Indemnification Procedures.  Each Party shall promptly notify the other Party in writing of any Third-Party Claim for which such Party believes it is entitled to be indemnified pursuant to Section 8(a) or Section 8(b).  The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Third-Party Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Third-Party Claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Third-Party Claim, the Indemnitee shall have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 8(c) will not relieve the Indemnitor of its obligations under this Section 8, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
  3. SOLE REMEDY. THIS SECTION 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND RAINTREE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR SUBSCRIPTION INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.  

9. LIMITATION OF LIABILITY

IN NO EVENT WILL RAINTREE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER RAINTREE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  IN NO EVENT WILL RAINTREE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO RAINTREE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

10. Term & Termination

  1. Term.  Unless otherwise set forth in the Order Form or other terminated earlier pursuant to this Agreement's express provisions, this Agreement will remain in effect for thirty six (36) months from the Effective Date (“Term”) and shall automatically renew for successive twelve (12) month periods (“Renewal Term”) upon Raintree’s prevailing terms and conditions unless either Party provides written notice of non-renewal to the other Party at least ninety (90) days prior to the expiration of the then-current term.
  2. Termination.  Either Party may terminate this Agreement (i) effective on written notice if the other Party  materially breach this Agreement, and such breach (A)  is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.    In the event Customer terminates this Agreement pursuant to this paragraph, it shall be entitled to a pro rata refund of any prepaid fees.  
  3. Effects of Termination.  Upon termination of this Agreement, access to the Software and the Subscription will terminate and Customer will cease all use of the Software and destroy and certify destruction of all Documentation and other Raintree Confidential Information.  The following provisions will survive termination of this Agreement: (i) any obligation of Customer to pay for the Subscription before termination; (ii) Subsections 2(b)-(g), 8 and Section 9 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.  Upon Customer’s request and at Customer’s sole cost and expense, including the payment to Raintree of Raintree’s then current rates for time and materials engagements, Raintree will provide reasonable assistance services to assist Customer in the transfer and migration of the Customer Information to Customer or another third party provider, for a period not to exceed ninety (90) days following the expiration or termination of this Agreement for any reason.

11. Miscellaneous

  1. Notices.  All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Subsection 11(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
  2. Independent Contractors.  This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties.  Neither Party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
  3. No Waiver.  No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.  Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  4. Force Majeure.  Raintree shall not be liable for any delay or failure to perform its obligations due to circumstances beyond Raintree’s control, such circumstances to include without limitation natural disasters, pandemic, epidemic, terrorism, labor disputes, war, declaration of governments, transportation delays, computer and/or network failures, acts of civil or military authorities, interruptions in third-party telecommunications or internet equipment or service, or misuse of the Subscription or the Software by Customer.
  5. Assignment & Successors.  Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Raintree may assign this Agreement to the surviving or acquiring party in a sale of substantially all the assets of or a merger of Raintree into another entity.  Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.  Except to the extent forbidden by this Subsection 11(e), this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
  6. Governing Law & Jurisdiction.  This Agreement will be governed solely by the internal laws of the State of California, without effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.  Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Riverside, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  7. Severability.  If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated.
  8. Execution in Counterparts.  This Agreement may be executed in one or more counterparts, each of which counterpart will be deemed an original, but all such counterparts will constitute a single instrument.
  9. Construction.  The parties agree that the terms of this Agreement result from negotiations between them.  This Agreement will not be construed in favor of or against either Party by reason of authorship.
  10. Entire Agreement and Amendment.  This Agreement, including its recitals, exhibits, referenced URLs, and Order Form, sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous writings, negotiations, discussions, representations and warranties, both written and oral, with respect to the subject matter hereof.  No terms and conditions from any Licensee purchase order, invoice or other form shall be considered part of the Agreement.  Neither Party has relied upon any such prior or contemporaneous communications.  Except as set forth in this Section 11(j), this Agreement may not be modified except (i) by authorized representatives of each Party and (ii) in a written contract signed by both Parties.  Notwithstanding anything to the contrary contained herein, Raintree reserves the right, in its sole discretion to make any changes to the Agreement, Subscription, Software or associated services that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of the Subscription or Software to its customers, (ii) the competitive strength of or market for the Software, or (iii) the Software cost efficiency or performance; or (b) to comply with applicable laws or regulations.  Notwithstanding anything to the contrary contained herein, Raintree may modify or amend this Agreement at any time and will post access to details of any modifications or amendments to this Agreement here.  Changes will not apply retroactively and generally will become effective thirty (30) days after they are posted.  However, changes addressing new functions for a product or service or made for legal reasons will be effective immediately.  If you don’t agree to any modified or amended terms in the Agreement, you must stop using the Software and Subscription.  Your continued use of the Software or Subscription after the effective date of any changes constitutes your agreement to follow and be bound by such changes. 
  11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3(e) (Confidentiality) or, in the case of Customer, Section 2(d) (Use Restrictions) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. 
  12. Export Regulation. The Subscription utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Subscription or the underlying software or technology to, or make the Subscription or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Subscription or the underlying software or technology available outside the US. 
  13. Public Announcement and Use of Customer Name and Logos.  Upon execution of this Agreement, the Parties may agree to develop and issue a mutually agreeable press release announcing this transaction.  Raintree may also use Customer’s name and logos in its marketing and advertising materials, including, but not limited to, on its website and in its investor decks.
  14. Non-Solicitation.  Customer agrees that, for the term of this Agreement and a period ending twelve (12) months following termination of this Agreement, neither it, nor its controlled affiliates, will, directly or indirectly, solicit for employment any individual employed by Raintree during the Term, provided, however, that the foregoing restriction on solicitations shall not restrict general solicitation of employment through advertisements or similar means that are not directed specifically at such employees.
Exhibit A: Service Level Agreement
Exhibit B: Software Maintenance and Support