Terms of Service
RNMKRS SUBSCRIPTION TERMS OF SERVICE
RNMKRS Inc. (“Company”) operates and provides a software as a service platform for education, training and improvement of sales teams (the “Platform”).
These RNMKRS Subscription Terms of Service (the “Terms”), together with the order form entered into between Customer and Company into which these Terms are incorporated by reference (“Order Form”), govern Customer's access to and use of the SaaS Services (as defined below). The Order Form, together with these Terms (collectively, the “Agreement”) constitute the complete agreement between Company and Customer and supersede any prior discussions or representations regarding Customer's access to and use of the SaaS Services.
“You” or “Customer” means the entity which has entered into the Order Form and which is granted access and use of the SaaS Services in accordance with the terms hereof.
BY EXECUTING OR CONFIRMING AN ORDER FORM, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM.
IF YOU ARE AN INDIVIDUAL ENTERING INTO THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO US THAT YOU ARE AUTHORIZED TO ENTER INTO THESE TERMS ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT ACCEPT ALL THE TERMS HEREIN OR ARE NOT AN AUTHORIZED REPRESENTATIVE FOR THE LEGAL ENTITY THAT WISHES TO ENTER INTO THESE TERMS, YOU MAY NOT AGREE TO THESE TERMS.
1. Subscription. Subject to the terms and conditions hereof, Company hereby grants Customer, solely during each Subscription Term (as defined below), a non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable limited right for Customer’s Authorized Users (as defined below) to access and use the functionality of the Platform and all related features and services provided by Company as part of the Platform (together, the “SaaS Services”) solely for Customer's internal business purposes. Customer’s access to and use of the SaaS Services is limited by and subject to the number of Authorized Users and Role Play Modules (as defined below) and other usage restrictions set forth in the applicable Order Form.
“Authorized Users” mean employees or authorized contractors of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business and subject to a confidentiality agreement with Customer, which are granted access and the right to use the SaaS Services subject to the terms hereof.
“Role Play Modules” mean the customized role play training modules tailored to Customer's selling product and process made available to Customer and its Authorized Users on the Platform and as part of the SaaS Services in accordance with the terms hereof.
2. Authorized Users. In order to access and use the SaaS Services, each respective Authorized User will be required to register a user account on the Platform (“User Account”). Customer will not allow anyone other than the respective Authorized User to access and use the Authorized User's User Account and shall ensure that all Authorized Users shall comply with the above restriction. Subject to prior written notification to Company, each User Account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User.
3. Additional Purchases. If Customer elects to purchase the SaaS Services for additional Authorized Users and/or Role Play Modules, the parties will execute an additional Order Form or amend the existing Order Form.
4. Restrictions on Use.
4.1 Customer will not: (a) create or enable the creation of derivative works, modifications, or adaptations of the SaaS Services; (b) decompile, reverse engineer or disassemble the SaaS Services; (c) distribute or disclose the SaaS Services to third parties other than as expressly permitted hereunder; (d) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the SaaS Services; (e) rent, sublicense, transfer or assign the SaaS Services to any third party or otherwise allow any third party to use the SaaS Services; (f) interfere with, burden or disrupt the SaaS Services’ functionality; or (g) use the SaaS Services for any purpose other than as set forth in this Agreement.
4.2 CUSTOMER MAY NOT USE THE SAAS SERVICES AND/OR OUTPUT DATA (AS DEFINED BELOW) FOR, OR IN CONJUNCTION WITH, ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY LAW APPLICABLE IN THE JURISDICTIONS WHERE CUSTOMER ENGAGES IN ACTIVITY OR BUSINESS, INCLUDING ANY APPLICABLE LAWS AND REGULATIONS GOVERNING PRIVACY, DEFAMATION, UNLAWFUL DISCRIMINATION, MASS EMAIL AND SPAM, CONSUMER PROTECTION, UNFAIR COMPETITION, AND FALSE ADVERTISING. CUSTOMER MAY NOT USE THE SAAS SERVICES FOR, OR IN CONNECTION WITH, ANY ACTIVITY THAT MAY BE DEEMED, OR ENCOURAGE ACTIVITY THAT MAY BE DEEMED THREATENING, HARASSING, MISLEADING, DECEPTIVE, ABUSIVE, VULGAR, OBSCENE OR PORNOGRAPHIC. COMPANY MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SAAS SERVICES. COMPANY MAY TERMINATE THE AGREEMENT WITHOUT PRIOR NOTICE AND AT ITS SOLE DISCRETION, IF COMPANY DEEMS CUSTOMER’S USE OF THE SAAS SERVICES TO BE FRAUDULENT OR ABUSIVE.
5. Customer Representations and Warranties. Customer represents and warrants that: (i) it is duly organized, validly existing and in good standing under the applicable laws of the state of its incorporation or formation; (ii) it has the right and full power and authority to enter into this Agreement; (iii) it will comply, at all times, with all applicable laws and regulations in connection with its use of the SaaS Services and performance hereunder; (iv) its (and its Authorized Users’) access to and collection, use, relocation, storage, disclosure, transfer, and disposition of Customer Data (as defined below) shall comply with all applicable laws and regulations; (v) no Customer Data (a) infringes any intellectual property or other rights of any third party, (b) contains any defamatory, libelous, pornographic or otherwise offensive material, or (c) contains any viruses, worms or other harmful or disruptive component; and (vi) it has the legal right and ability to provide the Customer Data for the purposes set forth herein.
6. Ownership. Company retains all rights, title, and ownership in and to the SaaS Services (including, without limitation, any Role Play Modules thereon), the written materials, manuals and other materials supplied by Company and related to the Platform (“Documentation”), all aggregated machine learning results derived from the SaaS Services, and any copies thereof in any form. This Agreement grants Customer a limited subscription to access and use the SaaS Services and not a contract of sale for the SaaS Services. All Intellectual Property Rights in and to the SaaS Services and Documentation are retained by Company. “Intellectual Property Rights” means all proprietary information including, without limitation, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the SaaS Services. Customer agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the SaaS Services, the Documentation, and any copies thereof in any form. All rights not granted hereunder by Company are expressly reserved by company.
7. Customer Data; Output Data. Customer shall have all right and title in (i) any information and/or data provided by Customer or any Authorized User to Company in connection with Customer’s use of the SaaS Services (“Customer Data”), and (ii) reports (other than reports that are normally generated by the SaaS Service and/or are not directly derived from the Customer Data, audio recordings of Customer’s Authorized Users, insights, analytics, and other types of information and data that the SaaS Services may provide or make available to Customer (“Output Data”). Notwithstanding the foregoing, Customer acknowledges that through the use of the Role Play Modules, some of the Output Data that is generated will be generic and such output may also be generated for other customers of Company. Unless not permitted by applicable law, Customer may have access to all Customer and Output Data provided by and generated for an Authorized User, including but not limited to the conversation transcripts and recordings of the Authorized User. Customer hereby grants Company a non-exclusive license to use, store, process, analyze, and display in connection with the SaaS Services all Customer Data and Output Data during the term of this Agreement for the limited purposes of performing Company's obligations under this Agreement and providing the SaaS Services to Customer. Customer further acknowledges that Company may access Customer Data submitted to the Services and the Output Data for the purpose of providing Customer with customer support services and for improving and training services and features developed by Company which Customer may access, and Customer permits and instructs Company to process its Customer Data and Output Data for such purpose. Customer shall, at its own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Data as necessary to enable Customer to grant the rights granted by this Section 7.
8. Aggregated and De-Identified Data. Notwithstanding anything to the contrary herein, Company may aggregate and de-identify Customer Data, Output Data and other data collected in connection with Customer’s access or use of the SaaS Services, including performance, analytics, and statistical data related to Customer's use of or access to the SaaS Services (“Anonymized Data”). Company may use, disclose, and transfer Anonymized Data, provided that following such aggregation or de-identification, the Anonymized Data does not identify Customer or its Authorized Users or otherwise contain any individually identifiable information of Customer or its Authorized Users.
9. Feedback. Customer may provide Company with feedback, suggestions, recommendations, and other input regarding the SaaS Services (“Feedback”). If Customer gives Company Feedback, then Customer will and hereby does grant to Company a worldwide, royalty-free, fully paid-up, exclusive, irrevocable, transferable, sub-licensable license to: (a) adapt, modify, and create derivative works of the Feedback; and, (b) to make, have made, use, copy, offer to sell, sell, perform, display, distribute, import, and otherwise dispose of the Feedback (and adaptations, modifications, and derivative works of the Feedback) and any product, technology, or service that incorporates, is combined or used with, or marketed for use or combination with, any Feedback.
10. Confidentiality. A party (“Receiving Party”) may, during the course of this Agreement, acquire information of the other party (“Disclosing Party”) that such Disclosing Party designates in writing as confidential or that a reasonable person would understand to be confidential (“Confidential Information”). The Receiving Party will, during the term of this Agreement and for three (3) years thereafter, treat the Disclosing Party’s Confidential Information as confidential and will not disclose any such Confidential Information to any third party nor use such Confidential Information other than in connection with this Agreement. Confidential Information shall not include information that the Receiving Party can document was independently developed by the Receiving Party, is or becomes publicly available without breach of this Agreement, is known prior to disclosure by the Receiving Party, or is acquired by the Receiving Party from a third party free of disclosure obligations.
11. Fees and Payment Terms. By entering into this Agreement, Customer hereby agrees to pay the fees specified in the applicable Order Form (the “Fees”) in accordance with the payment terms set forth herein. Except as otherwise mutually agreed upon in the applicable Order Form, Customer shall pay each invoice due and submitted to it by Company within thirty (30) days of the date of receipt of the invoice.
12. Taxes. To the extent applicable, Customer will pay any and all taxes pertaining to the SaaS Services or the use of the SaaS Services during the term of this Agreement and will reimburse Company on Company’s request if Company is required to pay any such tax.
13. Term; Termination.
13.1 The term of this Agreement shall begin on the Effective Date and continue until terminated as provided in this Section 13.
13.2 Each Order Form will terminate at the end of the subscription term identified therein (“Subscription Term”), unless earlier terminated as provided in this Section. Following the initial Subscription Term set forth the applicable Order Form, the Subscription Term shall be automatically renewed for additional periods of twelve (12) months each, unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term. For any renewal of a Subscription Term, Company reserves the right to increase the Fees for SaaS Services.
13.3 This Agreement and/or any Order Form may be terminated:
13.3.1 by either party, if the other party commits a material breach of any provision of this Agreement and/or applicable Order Form and such breach continues for a period of ten (10) days following a written request to cure such breach; or
13.3.2 by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law or makes or seeks to make a general assignment for the benefit of its creditors or applies for or consents to the appointment of a trustee, receiver or custodian for a substantial part of its property.
13.4 If an Order Form is still in effect at the time of expiration of this Agreement, then the terms and conditions contained in this Agreement and the relevant Order Form (including all subscriptions and licenses granted by Company thereunder) shall continue to govern the outstanding Order Form until the end of the applicable Subscription Term for that Order Form. However, if the Agreement is terminated prior to its natural expiration, then all outstanding Order Forms (and all subscriptions and licenses granted by Company thereunder) shall immediately terminate as of the Agreement termination date, unless otherwise agreed by the parties in writing. Termination shall be without prejudice to the rights and remedies of either party that may have accrued prior to such termination. For the avoidance of doubt, Customer shall not be entitled to a refund of any prepaid Fees upon termination or expiration of the Agreement, and Customer shall not be released from its obligations to pay Company all Fees that have accrued under this Agreement prior to its termination.
13.5 Within thirty (30) days following the termination of this Agreement for any reason, each party shall return or destroy, as requested by the other party in writing, any Confidential Information of the other party. Each party agrees to certify, in writing, to the other compliance with the foregoing undertakings upon a party’s request.
13.6 Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect, including any outstanding payment obligations.
14. No Warranties. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SAAS SERVICES AND/OR OUTPUT DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS GRANTED THE RIGHT TO ACCESS AND USE THE SAAS SERVICES ON AN "AS IS" BASIS WITH ALL FAULTS AND WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. CUSTOMER’S AUTHORIZED USERS’ INTERACTIONS AND CONVERSATIONS THROUGH THE ROLE PLAY MODULES SHALL NOT BE INTERPRETED AS, CONSTRUED, OR CONSIDERED AS THE COMPANY’S PROVISION OF MEDICAL, LEGAL, OR REGULATORY ADVICE.
15. Indemnification. Customer shall indemnify, defend and hold Company, its affiliates and their respective directors, officers, employees and independent contractors harmless (the “Company Indemnified Parties”) from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party against an Company Indemnified Party relating to: (a) any breach by Customer of any of its representations, warranties, covenants or obligations hereunder; (b) infringement or misappropriation of any Intellectual Property Rights by Customer; (c) any negligence or willful misconduct of Customer or its representatives; or (d) the Customer Data or any other input or feedback provided by any of the Customer’s Authorized Users.
16. Limitation of Liability.
16.1 IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER COMPANY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL COMPANY’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE IN WHICH THE CAUSE OF ACTION AROSE. NO ACTION SHALL BE BROUGHT BY CUSTOMER FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
16.2 CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ALL ACTS OR OMISSIONS THAT IT, ITS AUTHORIZED USERS OR OTHERS ON ITS BEHALF CONDUCT IN CONNECTION WITH ITS USE OF THE SAAS SERVICES AND OUTPUT DATA, AND FOR ALL CONSEQUENCES RESULTING FROM SUCH ACTIVITIES OR ACTIONS.
16.3 COMPANY IS NOT RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING BODILY HARM OR DAMAGE TO PROPERTY, CAUSED AS A RESULT OF CUSTOMER'S OR ITS AUTHORIZED USERS’ DECISION TO ACT IN ONE WAY OR ANOTHER BASED ON ANY OUTPUT DATA AND ANY OTHER CONTENT PRODUCED BY THE SAAS SERVICES. ANY RELIANCE ON ANY OF THE FOREGOING IS AT CUSTOMER’S FULL AND EXCLUSIVE RISK.
17. Rights and Remedies. All rights and remedies conferred by this Agreement or by law are cumulative and may be exercised singularly or concurrently. Customer acknowledges that any unauthorized use, copying, disclosure, distribution of the SaaS Services or any related methods, algorithms, techniques, processes or other information, will cause Company irreparable harm for which there is no adequate remedy at law, entitling Company to injunctive relief in addition to any other legal or equitable remedies.
18. Assignability. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by Customer without the prior written consent of Company, and any such assignment without such prior written consent will be null and void. This Agreement will be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns.
19. Waivers. No waiver of any provision of this Agreement will be binding unless set forth in a writing signed by the party granting the waiver. Any waiver will be limited to the circumstance or event specifically referenced in the written waiver document and will not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.
20. Changes to the Terms. From time to time, Company may change these Terms. Changes will take effect seven (7) days after their initial posting on the Platform, unless the Company amends the Terms to comply with legal requirements. In such cases, the amendments will become effective immediately upon their initial posting, or as otherwise required to comply with applicable laws. Customer's continued use of the SaaS Services after the date any such change becomes effective constitutes Customer's acceptance of the revised Terms.
21. Notices. Any notice required or permitted to be given under this Agreement will be in writing and be deemed given when delivered by hand or received by registered or certified mail, postage prepaid, by nationally recognized overnight courier service addressed to the party to receive such notice at the address provided in the applicable Order Form, or by email with a delivery confirmation.
22. Governing Law and Jurisdiction. This Agreement will be construed and enforced in accordance with the laws of the State of New York, without reference to its rules of conflicts of laws. If any party will institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any monies under it, venue for any such action will be New York County, New York. Each party irrevocably consents to the jurisdiction of the courts located in the State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an inconvenient forum, and each agrees that a final judgment in any action will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
23. Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO.
24. Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity will not affect the legality or validity of the remainder of the Agreement.
25. Headings. All section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.
26. Entire Agreement. This Agreement contains the entire understanding among the parties and supersedes any prior written or oral agreements between them respecting the subject matter of this Agreement. There are no representations, agreements, arrangements, or understandings, oral or written, between the parties relating to the subject matter of this Agreement that are not fully set forth in this Agreement. In the event of possible conflict or inconsistency between these Terms and the terms of any applicable Order Form, the conflict or inconsistency shall be resolved by giving precedence in the following order: (1) these Terms, including all amendments thereto; and (2) the terms of any Order Form.
Last Updated: September 2023
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