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End User License Agreement (EULA)

Last updated May 2, 2023

SAAS END USER LICENSE AGREEMENT (EULA)

PLEASE READ THE CONDITIONS BELOW CAREFULLY BEFORE INSTALLING THIS SOFTWARE.

BY CLICKING "OK", "PROCEED" OR "I ACCEPT" AND PERFORMING THE INSTALLATION OR USE OF THIS SOFTWARE AND SERVICES, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. If you do not accept any terms or conditions in this document, immediately cancel the installation or, if you already have the software installed, uninstall it, and request the removal of your credentials and data from the Rainforest system.

Definitions

  • RAINFOREST: Stands for RAINFOREST TECHNOLOGIES, with headquarters located at 108 West 13th St. Wilmington, DE 19801, United States, responsible for RAINFOREST's Software and Services.
  • SOFTWARE: Includes all on-premises and cloud-based RAINFOREST software and its updates provided by RAINFOREST to CUSTOMERS.
  • CUSTOMER: Means the end user who licenses and/or operates RAINFOREST's Software and Services.
  • AUTHORIZED PARTNER: Any of RAINFOREST's legally authorized distributors, resellers, business partners or other individuals offering our Software and services in accordance with a partnership agreement.
  • CONSEQUENTIAL DAMAGES: Indirect, special, incidental, punitive, exemplary, consequential, or extra-contractual damages of any kind, including third-party claims, loss of profits, system failure or malfunction, costs of obtaining substitute cloud services, work stoppage, denial of access or downtime, system or service disruption or interruption, or any lost, damaged, or stolen data, information or systems, as well as the costs of restoring any lost, damaged, or stolen data, information or systems.
  • DERIVATIVE WORK: A work that is based on one or more preexisting works (such as a revision, translation, dramatization, condensation, enhancement, modification, or any other form in which a preexisting work may be recast, transformed, or adapted) which, if created without the authorization of the copyright owner of the preexisting work, would constitute copyright infringement.
  • INTELLECTUAL PROPERTY RIGHTS: All intellectual property or other proprietary rights throughout the world, whether existing under statute, at common law or in equity, now existing or created in the future, including copyright, trademark and patent rights, trade secrets, moral rights, right of publicity, and authors' rights.
  • TECHNICAL SUPPORT: The Services that RAINFOREST (or an AUTHORIZED PARTNER) provides for the Support and maintenance of the RAINFOREST Products, as specified in the Technical Support and Maintenance Terms and Conditions.
  • UPDATES: Any updates of the Software made after the date of purchase of the SaaS.
  • UPGRADE: Any and all improvements in the Software that are generally made available to End Users as a part of Support.
  • PERSONAL DATA: Any information relating to an identified or identifiable individual, or as otherwise defined as "Personal Data" under the General Data Protection Regulation or other applicable data protection laws.
  • HIGH RISK SYSTEMS: A device or system that requires extra safety functionality such as fail-safe or fault-tolerant performance features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to death, personal injury or catastrophic property damage.

Software license

The Software (including, but not limited to, any images, photographs, animation, video, audio, music, text and "applets" incorporated into the Software) is owned by RAINFOREST and third-party licensors, and its structure, organization and code are valuable trade secrets of RAINFOREST and the third-party licensors. The Software is protected by copyright and other intellectual property laws and international treaties. Except as expressly set forth in this EULA, this EULA does not grant the Customer any intellectual property rights in the Software, and the Customer cannot use the Software except as specified herein.

RAINFOREST grants the Customer a limited license to use the Software based on one or more of the following metrics: volume of devices, number of users, number of applications and/or their micro-services, number of keywords, number of domains, or any other metric defined by RAINFOREST, which must be purchased by the Customer via an Order Form.

The Customer acknowledges that the rights granted under this EULA are conditional on the Customer's timely payment of the license fee payable to RAINFOREST in connection with the Agreement. The Software is licensed, not sold, and this Agreement is for the license of the Software on one of the following bases: (i) Perpetual License, or (ii) Subscription License.

Excluded software

Notwithstanding the foregoing limited license grant, the Customer acknowledges that the Product includes software subject to other terms and conditions governing its use other than this EULA. Certain Excluded Software may be covered by open-source software licenses ("Open-Source Components"). To the extent required by the licenses covering Open-Source Components, the terms of such licenses will apply in lieu of the terms of this EULA. To the extent the terms of the licenses applicable to Open-Source Components require RAINFOREST to make an offer to provide source code in connection with the Software, such offer is hereby made.

License restrictions

Except as expressly set out in this EULA or as permitted by any local law, the Customer agrees:

  • not to copy the Software or Documents except where necessary for the purpose of back-up or operational security;
  • not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documents;
  • not to make modifications of the whole or any part of the Software or Documents, or permit the Software or Documents to be combined with or incorporated into any other programs;
  • not to reverse-engineer or create derivative works based on the whole or any part of the Software, except to the extent that such actions cannot be prohibited under local law;
  • not to provide or otherwise make available the Software in whole or in part to any person without prior written consent from RAINFOREST;
  • not to remove any proprietary notices from the Software, Documents or Services; and
  • to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Software, Documents or any of the Services.

Acceptable use restrictions

Except for the limited privileges granted herein, or otherwise permitted by applicable law, no part of the Software, Services or Documents may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without express prior written consent by RAINFOREST.

The Customer must:

  • not use the Software, Documents or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously (for example, by hacking into or inserting malicious code, including viruses, or harmful data);
  • not infringe RAINFOREST's intellectual property rights or those of any third party in relation to the Customer's use of the Software, Documents or any Service;
  • not transmit any material that is defamatory, offensive or otherwise objectionable;
  • not use the Software, Documents or any Service in a way that could interfere with other users or damage, disable, overburden, impair or compromise RAINFOREST's systems or security or those of any third party; and
  • not attempt to decipher any transmissions to or from the servers running the Software or any Service.

Intellectual property rights

The Customer acknowledges that all intellectual property rights in the Software, the Documents and the Technology anywhere in the world belong to RAINFOREST or its licensors, that rights in the Technology are licensed (not sold) to the Customer, and that the Customer shall have no rights in or to the Software, the Documents, the Services or the Technology other than the right to use each of them in accordance with the terms of this EULA. The Customer acknowledges that it has no right to access the Software in source-code form.

Any data, comments or materials the Customer has sent through the Software or Services, including feedback data such as questions, comments, or suggestions ("Feedback"), shall be deemed non-confidential and non-proprietary. RAINFOREST shall have no obligation with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute the Feedback to others without limitation, except for Personal Data included in the Feedback, which will only be used to contact the Customer or resolve issues.

Limited warranty and disclaimer

Limited Warranty: RAINFOREST warrants that, for a period of 30 days from the purchase date (the "Warranty Period"), the Software licensed under this Agreement will perform substantially in accordance with the Documentation. The Customer's exclusive remedy and RAINFOREST's entire obligation and liability for any breach of the Limited Warranty is to repair or replace the Software, or refund the price the Customer paid for the Software if a repair or replacement would, in RAINFOREST's opinion, be unreasonable.

Exclusion of warranty: The Limited Warranty will not apply if the Software is not used in accordance with this Agreement or the Documentation; if the Software has been modified by any entity other than RAINFOREST; if a malfunction has been caused by any equipment or software not supplied by RAINFOREST; or if issues are due to a third-party add-on/plugin.

Disclaimer of warranties: Except for the Limited Warranty, the Software is provided "as is." To the extent permitted by law, RAINFOREST makes no other representations or warranties of any kind and disclaims all other obligations and liabilities, including implied warranties of merchantability, quality, fitness for a particular purpose, title, non-infringement, or systems integration. RAINFOREST makes no warranty that the operation of the Software will be fail-safe, uninterrupted or free from errors or defects, or that the Software will protect against all possible threats.

High Risk Systems: The Software is not designed, developed, tested, or intended to be reliable in the context of High-Risk Systems. RAINFOREST has no responsibility for, and the Customer will indemnify and hold RAINFOREST harmless from, all claims arising from the Customer's use of the Software on or in a High Risk System.

Limitation of liability

Each party's entire aggregate liability to the other for claims under or related to the subject-matter of this Agreement will not exceed the total payments paid or payable by the Customer to RAINFOREST in the three (3) months prior to the claim. Neither party will be liable for any consequential damages in connection with this Agreement, even if the damages were foreseeable or a party has been advised of the possibility of those damages. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.

Indemnification

Customer indemnification obligations: The Customer will unconditionally indemnify and defend RAINFOREST, its affiliates, and their officers, directors, employees, contractors and agents against any claims, liabilities and expenses arising from the Customer's failure to obtain required consents, the Customer's use of the Software in a manner not permitted by this Agreement, RAINFOREST's compliance with instructions provided by the Customer, claims asserted by any Customer Representative, or any violation by the Customer of applicable laws.

RAINFOREST indemnification obligations: RAINFOREST will indemnify the Customer against a third-party claim if the claim is for direct patent infringement, direct copyright infringement, or RAINFOREST's trade secret misappropriation, and the claim is asserted against the Software alone and not in combination with anything else.

Remedies: RAINFOREST may, in its sole discretion and at its own expense, procure for the Customer the right to continue using the Software, replace the Software with a non-infringing version, or modify the Software so that it becomes non-infringing.

Privacy and collection of personal data

The Software or Support may employ applications and tools to collect Personal Data, sensitive data, or other information about the Customer (including name, address, e-mail address and payment details), IP address, location, device, and browser information. The collection of this data may be necessary to provide the Customer with the relevant Software or Support functionalities, and may also be used to improve, support and administer the Software, fulfill requests, customize the experience, and communicate with the Customer.

Export restrictions

The Customer acknowledges that the Software is subject to United States export jurisdiction. The Customer agrees to comply with all applicable international and national laws that apply to the Software.

Support, training and maintenance

RAINFOREST shall provide Support to the Customer regarding any issue arising from the Software during the Purchase Period. The primary mode of Support shall be over RAINFOREST's website (https://rainforest.tech/support) or via [email protected]. If necessary, and solely at RAINFOREST's discretion, the Customer may be provided with a walk-through of the Software through calls with trained customer service representatives.

General

Relationship. The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship.

Severability. If a court holds that any provision of this Agreement is invalid or unenforceable, the court will modify the provision to the minimum extent necessary to make it valid and enforceable, or sever it. The change will affect neither the validity of the amended provision nor of any other provision.

No waiver. A party's failure or delay in enforcing any provision will not operate as a waiver of the right to enforce that or any other provision. A waiver must be in writing and signed by the party agreeing to it.

Force majeure. Neither party is liable for delays or failures to perform to the extent caused by a Force Majeure Event or by the other party's acts, omissions, or reliance on its instructions.

Governing law. This SaaS End User License Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, which law shall prevail in the event of any conflict.

Assignment. The Customer may not sublicense, assign, or transfer its rights under this Agreement without RAINFOREST's prior written consent. Any attempt to do so, whether directly or indirectly by merger, acquisition or change of control, will be null and void.

At any time, RAINFOREST may change or revise this License Agreement, in its sole discretion. This new document will come into force 48 (forty-eight) hours after its publication on the RAINFOREST website (https://rainforest.tech/legal/eula). Users who do not accept the new terms must uninstall the RAINFOREST Software and request the removal of their credential information from the Rainforest system.