You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.
― Buckminster Fuller
RightForge exists to provide the technology infrastructure to protect Americans’ sacred rights to freedom of expression and other fundamental liberties set out in the Declaration of Independence and the Bill of Rights. These freedoms require an internet that is truly open, unlike much of the modern online environment that is under threat from large corporate entities acting not to further traditional American liberty but to promote radical and restrictive ideologies. RightForge offers this Agreement in the spirit of its founding principles. Please see RightForge’s Community Policies for more information about the fundamental ideals that RightForge brings to its services.
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This legally binding RightForge Services Agreement (the “Agreement”) is by and between RightForge, LLC, a Delaware limited liability company having an address of 600 F St NW, Suite 500, Washington DC 20004 (“RightForge”) and the customer identified on the Order or other applicable Attachment that refers to this Agreement (“Customer”). This Agreement is effective as of the date on which Customer and RightForge have both signed an Order or other applicable Attachment, or the date on which Customer first receives any Services, whichever is earlier (the “Effective Date”). By ordering the Services, Customer acknowledges and agrees that Customer has read, understands, acknowledges and agrees to be bound by all the provisions of this Agreement. The parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:
1. Definitions. Capitalized words not elsewhere defined in this Agreement will have the following meanings:
1.1 “Account Information” means any valid information, including billing information, contact information, payment information and such other information that Customer provides to RightForge.
1.2 “Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party. “Own” means having more than 50% ownership or the right to direct the management of the entity.
1.3 “Attachment” means any of the following, all of which are hereby incorporated by reference into this Agreement: (i) any electronic or hard copy document executed by the parties, including but not limited to any document made available and executed via the RightForge Portal, that that refers or relates to this Agreement, (ii) any RightForge-accepted written Order for the Services, and (iii) any document hyperlinked from within this Agreement. Capitalized words not otherwise defined within such Attachment will have the meanings of such words as defined in this Agreement.
1.4 “Billing Start Date” means the date on which Fees first become due for the Services, as set forth in the applicable Attachment.
1.5 “Custom Deliverables” means all materials developed specifically and exclusively for Customer by RightForge, as set forth in an Order, in connection with Professional Services.
1.6 “Customer Data” means all data, software and information, including, without limitation, data, text, software, scripts, video, sound, music, graphics and images that are uploaded or stored in connection with the Services by Customer or its Affiliates.
1.7 “Customer End User” means a Third Party which is an end user of a Customer Offering.
1.8 “Customer Offering” means any services provided by Customer to Third Parties, that directly utilize the Services.
1.9 “Customer Parties” means Customer and its subsidiaries, parents, Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns.
1.10 “Due Date” means the date on which Fees are due, initially established by the Billing Start Date, recurring each month as set forth in this Agreement, or pursuant to an applicable Attachment.
1.11 “Fees” means those amounts due to RightForge in exchange for the performance of the Services, as provided in an applicable Attachment.
1.12 “Implementation Start Date” means the date on which RightForge shall begin implementing Services (defined below) for Customer as set forth in an Order.
1.13 “Intellectual Property Rights” means all inventions, patents, copyrights, trade secrets, trademarks, trade names, know-how, moral rights, and all other intangible proprietary or property rights, whether or not patentable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third party usage), and any and all applications for, and extensions, divisions, and reissuances of, any of the foregoing, and rights therein, everywhere in the world, and whether arising by statute or common law.
1.14 “Order” means a written document executed (including electronically) via both parties that sets forth the specific Services and any Deliverables to be provided, together with other commercial terms relating thereto, including but not limited to pricing, timelines and specific terms and conditions.
1.15 “Professional Services” means migration, development, implementation, consulting and any other professional services that Customer may order and RightForge agrees to provide in accordance with an Order.
1.16 “RightForge Parties” means RightForge and its subsidiaries, parents, Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns, and providers of Third Party services, and those parties’ respective subsidiaries, parents, Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns.
1.17 “RightForge Portal” means that set of online interfaces RightForge or one of its Affiliates provides to Customer for purposes including but not limited to communication, billing, account management services and activities, etc.
1.18 “Service Level Agreement” or “SLA” means that service level agreement pertaining to the Services set forth at rightforge.com/sla.
1.19 “Services” means those services RightForge will provide to Customer as set forth in any Order or added by Customer in the future via any method, and includes Professional Services and Usage-Based Billed Services.
1.20 “Service Period” means the period of time RightForge will provide the Services to Customer as set forth in an applicable Attachment, such period to begin upon the Billing Start Date or a date otherwise agreed to in an Attachment.
1.21 “Site” means any RightForge data center location.
1.22 “SLA Credits” mean the credits for applicable qualifying events as described in the Service Level Agreement.
1.23 “Third Party” means any person or entity other than RightForge or Customer, or such parties’ Affiliates.
1.24 “Undisputed Fees” means all Fees due under this Agreement except for those amounts for which Customer: (a) believes in good faith to be not due and owing, (b) designates in writing as “disputed” to RightForge no less than 10 days prior to the Due Date, and (c) provides detail as to the basis of the disputed nature sufficient to enable RightForge to propose and undertake a solution to the issue giving rise to the dispute.
1.25 “Usage-Based Billed Services” means those Services provided under this Agreement that are billed on the basis of actual usage of the Services by Customer, the cost for which will be calculated by multiplying a fixed unit by a rate set forth in an applicable Attachment.
1.26 “Website” means rightforge.com or any successor website.
2.1 RightForge will provide the Services to Customer according to the specifications and timeframes set forth in the applicable Order, beginning on the Billing Start Date. Subject to Customer’s compliance with the terms and conditions of this Agreement, RightForge grants to Customer a nonexclusive, nontransferable, nonsublicenseable, revocable right to access and use the Services for Customer’s internal business purposes and to use the Services to create, offer and provide Customer Offerings. Customer will have sole responsibility to instruct RightForge via the RightForge Portal or another acceptable method to decommission, add, modify or remove any portion of the Services.
2.2 Customer hereby grants to RightForge a nonexclusive, royalty‐free, worldwide right and license to host Customer Data to the extent necessary for RightForge to provide the Services to Customer under this Agreement.
3. Fees and Payment.
3.1 Customer will pay RightForge the Fees for the Services in the amounts and otherwise as set forth in the applicable Attachment. Customer will pay the Fees to RightForge no later than the Due Date, each month, in U.S. Dollars.
3.2 Any portion of Fees remaining unpaid 30 days or more beyond the Due Date will be subject to interest of 1.5% per month or the maximum permitted by law, whichever is less.
3.3 Usage-Based Billed Services, identified as such in an applicable Attachment will be billed on the basis of consumption and in intervals set forth in an applicable Attachment. Each unit of a Usage-Based Billed Service consumed by Customer will be rounded up to the next whole unit. A base rate and overage rate for the Services may be established by RightForge and communicated to Customer in an applicable Attachment. Customer will be responsible for the tracking and controlling of its usage of the Usage-Based Billed Services from within the RightForge Portal, and RightForge will have no responsibility to notify Customer pertaining to any usage.
3.4 Professional Services will be provided on an hourly basis and billed in 15 minute intervals at RightForge’s then current rates or otherwise as agreed by the parties. Professional services provided for purposes of onboarding (including but not limited to data migration from other providers, configuration of servers, and other tasks directly related to “moving in”) will be billed at a flat one-time rate agreed upon by the parties in advance and set forth in an Order.
3.5 Customer will pay all Fees using a payment method that is maintained on file with RightForge, such as, but not limited to, credit card, ACH electronic funds transfer, or such other method as approved by RightForge. Customer will be responsible for all fees, including processing fees, associated with making payment via wire transfer to RightForge. Returned electronic check payments will be subject to a returned check fee of $25.00 or the highest amount permitted by law, whichever is lower. Customer is responsible for any fees and costs (including, but not limited to, reasonable actual attorney’s fees, court costs and collection agency fees) incurred by RightForge in enforcing collection of Fees.
3.6 Customer hereby authorizes RightForge to automatically charge Customer’s payment method on file with RightForge on or before the applicable Due Date. If Customer’s payment method is a physical check or money order, Customer authorizes RightForge to use information from the check to make a one‐time electronic transfer from Customer’s account as soon as the same day Customer makes payment, in which case Customer may not receive the check back from its financial institution.
3.7 Customer will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees (except for taxes based upon RightForge’s net income) related to the Services imposed by any governmental authority. All Fees are exclusive of any such taxes, duties, levies, or fees.
3.8 In the event that RightForge suspends or terminates any portion of the Services due to cause, such as non-payment of Fees, or other violations of this Agreement (including but not limited to violations of the RightForge Community Policies), as authorized under this Agreement, RightForge may, as a condition for restoring the Services, require that Customer pay to RightForge, in advance, a reasonable reconnection fee to defray RightForge’s reasonable administrative and similar costs to restore the Services to Customer. The payment of such reconnection fee will be in addition to any Fees remaining due and owing to RightForge.
3.9 All Fees are nonrefundable. Customer’s sole remedy for RightForge’s nonperformance of any Services will be a credit issued in accordance with any applicable Service Level Agreement.
3.10 RightForge may adjust the Fees in proportion with any increase in or changes to Third Party costs which are directly related to providing the Services to Customer, provided that (a) such increase or change is not due to any action initiated by RightForge, and (b) RightForge is unable to procure at more favorable prices alternative, comparable (as determined in RightForge’s discretion) Third Party products despite RightForge’s commercially reasonable efforts to do so. RightForge may adjust its software offering and associated Fees in accordance with Third Party vendor program releases, policies or requirements. RightForge will provide at least 30 days’ prior notice to Customer of any increase in or changes to Third Party Costs under this subsection.
4.1 This Agreement will begin on the Effective Date, and unless terminated earlier as permitted under this Agreement, will continue in effect until the completion of all Services as set forth in all applicable Attachments. Service Periods will be set forth in the applicable Attachment.
4.2 If the Implementation Start Date is delayed due to Customer action or inaction, RightForge may establish a new Implementation Start Date up to 15 days later than the initial Implementation Start Date, provided that any Customer action or inaction does not (i) make such new Implementation Start Date impracticable, or (ii) make RightForge’s efforts at addressing the issue in response to any Customer action or inaction commercially unfeasible. RightForge may, at RightForge’s sole discretion, extend the Service Period by the number of days by which the Implementation Start Date is delayed.
4.3 Customer may request additional Services during the term of this Agreement by submitting the appropriate written Order form for such Services. The Service Period for each such new Service will be set forth in the Order.
5. Suspension and Termination.
5.1 RightForge acknowledges that the discontinuation of Services is a drastic remedy that impacts the freedom of information to be transmitted and shared. Accordingly, RightForge has adopted the provisions of this section relating to suspension and termination to narrowly address circumstances where such suspension is necessary to protect the legitimate and lawful interests of RightForge, other customers, and the general public interest in a free and open internet.
5.2 RightForge may suspend the Services if Customer is in material breach of any provision of this Agreement (including nonpayment of any Undisputed Fees) and such breach has not been cured to RightForge’s reasonable satisfaction within 14 days’ written notice to Customer. Prior notice of suspension will not be required if RightForge determines, in its reasonable discretion, that suspension is necessary to protect RightForge, its providers, or its other customers from operational, security, or other material risk, or if the suspension is ordered by a court or other tribunal. In the event of suspension, Customer will remain liable for all Fees that would have been paid had the Services not been suspended.
5.3 Either party may terminate this Agreement or the Services under an applicable Attachment for material breach (including nonpayment of any Undisputed Fees) as provided in this subsection. If this Agreement or an applicable Attachment provides for Customer to receive the Services on a month-to-month basis, either party may terminate for material breach, provided that the nonbreaching party has given the other party written notice of and the opportunity to cure the breach, and such breach has not been cured within 10 days of the notice. If this Agreement or an applicable Attachment provides for Customer to receive the Services on terms longer than a month-to-month basis, either party may terminate for material breach, provided that the nonbreaching party has given the other party written notice of and the opportunity to cure the breach, and such breach has not been cured within 30 days of the notice. Termination for breach will not alter or affect either party’s right to seek any available remedy.
5.4 Except for termination as provided in this Section due to RightForge’s material breach, in the event Customer seeks to terminate this Agreement or an applicable Attachment prior to expiration, Customer will be liable for all Fees due during the remainder of the Service Periods of all applicable Services, and such Fees will become immediately due and payable without further notice or demand from RightForge.
6. Post Termination Obligations and Procedures.
6.1 Upon expiration or termination of this Agreement or, as applicable, an Attachment:
(a) Customer will discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by RightForge and any other materials provided to Customer by RightForge in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services;
(b) all licenses granted to Customer, and all rights of Customer to receive the Services, will terminate.
6.2 RightForge will have no obligation to provide any transition services or access to data except as expressly provided in this Agreement or as otherwise agreed in writing by the parties and as set forth in an applicable Attachment.
6.3 Provided that Customer has paid all Undisputed Fees and is not otherwise in material breach under this Agreement, for a period of 7 days following the effective termination or expiration of this Agreement or applicable Attachment, RightForge will permit Customer to copy Customer Data from RightForge’s system. After such time, RightForge will have no obligation to retain any Customer Data and may freely delete such Customer Data without liability to Customer. For purposes of clarity, nothing in this Agreement will impair RightForge’s right and ability to immediately and permanently delete any Customer Data or other content that violates the RightForge’s Community Policies.
6.4 Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. Without limiting the generality of the foregoing, Sections 1, 5, 6, 13, 15, 16, 18 and 23 will survive the expiration or termination of this Agreement.
7. User Control Considerations. Customer will (a) delegate access to Customer employees via the RightForge Portal, (b) assign and maintain a secure authentication mechanism to control access to sensitive information, including but not limited to, Customer passwords, (c) maintain and change passwords frequently, and promptly upon providing access to RightForge or any Third Party to perform maintenance activities on Customer’s behalf, and (d) provide to RightForge a primary notification point of contact to serve as Customer’s authorized representative to make technical and financial decisions.
8. Service Levels.
8.1 RightForge will provide the Services in accordance with the Service Level Agreement. RightForge will provide SLA Credits according to the terms of the applicable Service Level Agreement. Credits under the Service Level Agreement, if issued to Customer’s account, will be used only to offset future Fees for certain Services as provided in the Service Level Agreement. Such credits may not be sold, converted to cash, used to pay past due balances, or transferred to any Third Party or Affiliate, and will expire on the termination or expiration of this Agreement.
8.2 RightForge may provide support services via the RightForge Portal or other means as it determines from time to time. RightForge may close or put on hold any request for service if Customer has not updated such request for 72 hours after notification from RightForge.
9. Subcontractors. RightForge may use one or more subcontractors to provide the Services or a portion of the Services. Unless otherwise agreed in writing, RightForge will be solely responsible for any fees or charges incurred through use of subcontractors to the extent required to provide the Services, and subcontracting will not increase the Fees payable under this Agreement. Customer will pay any fees for subcontractors that RightForge may retain to provide agreed‐upon services in excess of the scope of the Services set forth in this Agreement.
10. Backup and Security.
10.1 Except for responsibility for reasonable physical security of the servers and related hardware used to provide the Services, and except as expressly provided in an applicable Attachment, Customer will be solely responsible for data maintenance, integrity, retention, security, business continuity, disaster recovery and backup of Customer Data. Customer has the option to contract with RightForge for the services listed in the preceding sentence, or related services. For purposes of clarity, any Customer who does not contract with RightForge for such services will be solely responsible for undertaking measures to: (a) prevent any loss or damage to Customer Data; (b) maintain independent archival and backup copies of Customer Data; and (c) ensure the security, confidentiality and integrity of Customer Data.
10.2 Customer will use reasonable security precautions for providing access to the Services by its employees or other individuals to whom it provides access, whether in connection with Customer’s internal business purposes or as a Customer Offering. Customer will be solely responsible for ensuring the confidentiality and security of all account usernames and passwords, and for all user conduct in connection with such account credentials. Customer will implement internal protocols and procedures whereby terminated personnel will no longer be able to use any Customer username or password. All passwords used by Customer or its personnel must be smart, secure combinations of characters and not be comprised solely of dictionary words.
10.3 RightForge will comply with all applicable laws pertaining to data breach and notification of same. Customer shall promptly notify RightForge of any potential, suspected or actual security breach concerning the Services or Customer Data about which Customer becomes aware.
11. Customer’s Obligations.
Customer will comply, and will require its Customer End Users comply, with RightForge’s Community Policies available at https://rightforge.com/legal and will not otherwise use the Services for any unlawful purpose. Customer will provide reasonable cooperation with RightForge to investigate any violation of this provision.
Customer will promptly remove or disable access to any content alleged to infringe the copyright of any third party, and otherwise comply with all other requirements of the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), found at 17 U.S.C. §512, as amended from time to time. The obligations of Customer to comply with DMCA takedown notices applies regardless of whether Customer has received a takedown notice directly from a third party, or has received a forwarded takedown notice from RightForge. Without limiting any other provision in this Agreement, Customer agrees that any repeated failure to promptly disable access to or delete content alleged to infringe copyright is a material breach of this Agreement, and RightForge may immediately terminate this Agreement or take other reasonably necessary actions to ensure that no further infringements will occur.
11.1 Customer will not copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or, except as part of an authorized Customer Offering, allow Third Party access to the Services. Customer will not remove any proprietary notices or labels contained in or placed by the Services and will not use, post, transmit, or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Services. Customer will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services’ systems or networks, or any systems or networks connected to the Services.
Customer will reasonably comply with any request by RightForge to cooperate in connection with any third party audit, including but not limited to software audits.
12. IP Allocation
Customer acknowledges and agrees that the use of IP addresses in a manner not authorized under this section does not affirm the important free speech and other interests set forth in the RightForge Community Policies.
IP Addresses. Assignment of a RightForge IP (Internet Protocol) address to Customer, either IPv4 or IPv6, does not constitute transfer of ownership, as the IP address will continue to be owned by RightForge, licensed to Customer for use in accordance with the terms and conditions of this Agreement. RightForge will use commercially reasonable efforts to ensure that the IP addresses allocated to Customer remain allocated to Customer. However, RightForge reserves the right to change IP address allocations for any reason (including, but not limited to upgrades, security provisioning, or other network migration service). RightForge will use commercially reasonable efforts to provide Customer with advance notice of IP address changes.
Obligation to Preserve the Good Standing of RightForge IPs and Not to Manipulate IP Addresses. If Customer is assigned any of RightForge’s IP addresses (IPv4 and/or IPv6), Customer agrees to maintain the integrity and industry good-standing of RightForge’s IP addresses and not to undertake any actions that might cause RightForge’s mail servers or any of its IP addresses or ranges to be placed on any “blacklist” or “black hole list” (e.g., www.spamhaus.org, “XBL,” or “SBL”) or any other mail filtering software systems used by companies on the internet. Customer agrees to notify RightForge immediately if Customer learns that any of RightForge’s IP addresses have been placed on any such list. Customer agrees to take whatever steps are necessary (or fully cooperate with RightForge in taking whatever actions its deems necessary) to remove any of RightForge’s IP addresses from any such lists immediately.
Customer agrees to not modify any configuration that will conflict with, or disrupt RightForge’s network services.
Customer acknowledges and agrees that RightForge information may be associated with Customer’s servers’ IP addresses as Customer’s webhosting provider on WHOIS and other webhost lookup/search tools.
Each party recognizes, in the spirit of the RightForge Community Policies, that it has a responsibility concerning its own actions, and accordingly, the parties agree in this section to allocate the risks arising from the others’ conduct in a reasonable manner.
RightForge will defend, indemnify, and hold Customer harmless from and against all liabilities, losses, damages, claims, costs, causes of action and expenses, including but not limited to the costs of defense and reasonable actual attorney’s fees (“Claims”), suffered, paid or incurred by any of the Customer Parties, whether or not suit is filed resulting from direct infringement by the Services upon any U.S. copyright, trademark, or trade secret existing as of the Effective Date. The obligations will not apply to the extent any infringement arises from any use of the Services in a manner not authorized by RightForge or from use of any Third Party software or other technology. In the event that some or all of the Services are held by a court of competent jurisdiction to be infringing or if RightForge reasonably believes that such Services may be held to be infringing, then RightForge will, at its expense: (i) modify the Services to be non-infringing in a manner that the Services’ functions are not materially modified; (ii) obtain for Customer a license to continue using the Services; or (iii) terminate this Agreement or the affected Services and provide a prorated refund of any fees paid in advance for the affected Services. This Section sets forth Customer’s sole and exclusive remedies for any claim of infringement related to the Services or any other Intellectual Property Rights licensed under this Agreement.
Customer will defend, indemnify, and hold the RightForge Parties harmless from and against all Claims, whether or not suit is filed, arising out of, resulting from or connected with, in whole or in part: (i) Customer’s use of the Services or Third Party services; (ii) any infringement or alleged infringement by the Customer Data of any Third Party Intellectual Property Right, (iii) any breach or alleged breach by Customer of this Agreement, including any warranty contained in this Agreement; (iv) any violation or alleged violation by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, right of publicity or other proprietary right; (v) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; (vi) any actual or alleged violation or noncompliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction; or (vii) as applicable, Customer’s resale of the Services.
In connection with any Claim for which a party seeks indemnification (being in such case, the “Indemnified Party”) from the other party (the “Indemnifying Party”) under this Agreement, the Indemnified Party will: (i) give the Indemnifying Party prompt written notice of the Claim; provided, however, that failure to provide such notice will not relieve the Indemnifying Party from its liabilities or obligations under this Agreement, except solely to the extent of any material prejudice as a direct result of such failure; (ii) cooperate with the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, in connection with the defense and settlement of the Claim, action, suit, proceeding, or investigation; and (iii) permit the Indemnifying Party to control the defense and settlement of the Claim; provided, however, that the Indemnifying Party may not settle the Claim without the Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed. Further, the Indemnified Party, at its cost and expense, may participate in the defense of the Claim, through counsel of its own choosing. Notwithstanding the foregoing, in no event may Customer settle any Claim unless such settlement completely and forever releases RightForge from any and all liability with respect to such Claim and does not require RightForge to take, or cease taking, any action, unless RightForge provides its prior, written consent to such settlement.
14. Warranties. Each party represents and warrants to the other that it is a business entity duly organized, that it has all rights necessary to enter into this Agreement, and that by entering into this Agreement it will not be in breach of any other agreement or obligation. RightForge warrants that the Services will be provided in a diligent and skillful manner in accordance with reasonable industry standards. Customer warrants and represents that (a) its use of the Services will comply with and be in accordance with all applicable laws and regulations, including but not limited to all laws and regulations specifically addressing Customer’s industry, and (b) that the Customer Data will not infringe or misappropriate the Intellectual Property Rights or other rights of any Third Party.
15. DISCLAIMER OF WARRANTIES. Except for the warranties set forth in above, which are limited warranties and the only warranties provided by RightForge to Customer, the Services are provided “AS IS,” and RightForge makes no additional warranties, express, implied, arising from course of dealing or usage of trade, or statutory, as to the Services or any matter whatsoever. RightForge disclaims all implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, title and non-infringement. RightForge does not warrant that the Services will meet any Customer requirements not set forth in this Agreement, that the Services will be uninterrupted or error-free, or that all errors will be corrected.
16. LIMITATION OF LIABILITY. In no event will either party be liable for any special or consequential damages (including for loss of profits, savings, revenue, or use, damaged or lost files or data, or business interruption) that may arise in connection with this Agreement, any Services provided to Customer, or any matter whatsoever, regardless of the cause of action or characterization of the damages, even if the party sought to be held liable has been advised of the possibility of such damages. Except for Customer’s obligation to pay Fees under this Agreement, in no event will either party be liable for any damages arising out of or relating to this Agreement, any Services, or any matter whatsoever, regardless of the cause of action or characterization of the damages, exceeding the amount of fees paid by Customer under this Agreement during the 12-month period preceding the first act giving rise to liability. The foregoing limitations of liability will apply notwithstanding the failure of essential purpose of any remedies specified in this Agreement.
17. Essential Basis of Bargain. Customer acknowledges that the Fees reflect the overall allocation of risk between the parties, including by means of the provisions for limitation of liability and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between the parties and a modification of such provisions would affect substantially the Fees charged by RightForge. In consideration of such Fees, Customer agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.
18. Confidentiality. Each party agrees that information relating to the other that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence and will not be disclosed or used except to the extent that such disclosure or use is necessary to the performance of the Services. The obligations of confidentiality in this Section will not apply with respect to information that is independently developed by either party, lawfully becomes a part of the public domain, or of which the other party gained knowledge or possession free of any confidentiality obligation. RightForge may disclose information, including information that Customer, or Customer End Users, may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request.
19. Export. Customer will comply with all applicable export laws and regulations of the United States of America, and assure that its use of the Services will not result in (a) export, directly or indirectly, in violation of any applicable export laws; or (b) any use or purpose prohibited by applicable export laws, including nuclear, chemical, or biological weapons proliferation. The parties will not take any actions that would cause either party to violate the U.S. Foreign Corrupt Practices Act of 1997, as amended.
20. Intellectual Property Rights.
20.1 As between the parties, RightForge retains all right, title and interest in and to the software and systems used to provide the Services. For purposes of clarity, as between RightForge and Customer, RightForge shall retain all Intellectual Property Rights associated with or embodied within the Services. Customer acknowledges that Third Party software may be embedded or otherwise delivered as part of the Services. Customer may only use such Third Party software as integrated with and part of the Services. The licensors of the Third Party software are intended beneficiaries of this Agreement, as it pertains to Customer’s rights to use such software. RightForge reserves all rights in the Services which it has not expressly granted to Customer under this Agreement, and Customer agrees to not assert any implied rights to use or otherwise exercise any rights in any RightForge system or software.
20.2 Customer hereby grants to RightForge a nonexclusive, worldwide, royalty-free, fully paid‐up license during the term to use Customer’s trademarks, marks, logos or trade names in connection with RightForge’s provision of Services (including support of Services) to Customer and to be listed as a RightForge customer on the Website and in other marketing or promotional materials.
21. Custom Deliverables.
21.1 Unless otherwise set forth in an applicable Attachment, Customer will own the Custom Deliverables, if any, and such Custom Deliverables will be considered a work made for hire. To the extent the Custom Deliverables cannot be considered a work made for hire, RightForge hereby assigns to Customer its entire right, title and interest, including all Intellectual Property Rights, in the Work Product.
21.2 RightForge shall retain all right, title and interest, including all Intellectual Property Rights embodied within or associated with RightForge’s Background Technology. “Background Technology” means any materials, technologies, know-how or the like created or developed by or for RightForge, or acquired by RightForge (including materials and technology available to RightForge in accordance with a license grant) either (i) prior to the Effective Date of this Agreement, (ii) subsequent to such Effective Date if conceived, reduced to practice, authored, created or developed separately and independently of RightForge’s performance under this Agreement, or (iii) of general utility to RightForge in the performance of services in the marketplace.
22. Press Releases and Publicity. After execution of this Agreement, the parties may issue a joint press release announcing the parties’ relationship under this Agreement. The timing and content of any press release will be subject to the approval of each party, which approval may not be unreasonably withheld, conditioned or delayed. RightForge may, however, identify Customer as a customer of RightForge in marketing, promotion and other public communications. Except as required by law, and as permitted under this Section, neither party will make any public statements, press releases or other public announcements regarding the parties’ relationship without the prior written approval of the other party, and neither party may use the other party’s trademarks or company name.
23. General Provisions.
23.1 Force Majeure. With the exception of Customer’s payment obligations, neither party will be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, terrorism, epidemics, pandemics, shortage of power, telecommunications or internet service interruptions or other acts or causes reasonably beyond the control of that party.
23.2 Governing Law and Dispute Resolution. This Agreement will be governed in all respects by the laws of the State of Tennessee without regard to conflict of law provisions. Any dispute arising under this Agreement will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The arbitration will be held in Nashville, Tennessee. The arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
23.3 Compliance With Laws. Each party will comply with all applicable federal, state and local laws and regulations. If, after the Effective Date of this Agreement any law becomes effective which substantially and materially alters the ability or cost of either party to perform its obligations under this Agreement in whole or part, the parties will renegotiate the provisions of this Agreement to the extent necessary to reflect the effect of such law. If renegotiations do not result in terms agreeable to both parties, the party that would bear the altered cost due to the change in the law will have the right to terminate this Agreement without penalty upon thirty (30) days’ written notice to the other party.
23.4 Limitations of Actions. No action, regardless of form or substance, arising out of this Agreement or the performance or nonperformance of any of the parties’ obligations hereunder may be brought more than one (1) year after a party knew or should have known of the occurrence of the event giving rise to such cause of action.
23.5 Assignment. Neither party will assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the preceding sentence, with the exception of an assignment to a competitor of the nonassigning party (which will require consent from the nonassigning party), either party may assign this Agreement without obtaining the consent of the other party, to an entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the assigning party, or as part of a business restructuring, sale of stock, or other recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
23.6 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
23.7 No Waiver. The waiver by either party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing, and signed by the party waiving its rights.
23.8 Notices. Any notice required under this Agreement shall be provided to the other party in writing. Any notice from Customer to RightForge must be delivered personally or sent by nationally-recognized overnight courier or by certified mail, postage prepaid, return receipt requested, to: RightForge, Attn: Legal Dept., 600 F St NW, Suite 500, Washington DC 20004. RightForge may give general notices concerning the Services to Customer by means of a notice on the RightForge Portal, and notices specific to Customer by electronic mail to the Customer e-mail address in RightForge’s account records for Customer, or delivered personally or sent by nationally-recognized overnight courier or by certified mail, postage prepaid, return receipt requested to the Customer address on record in RightForge’s account records.
23.9 Relation of the Parties. The parties agree they are acting as independent contractors and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.
23.10 Severability. If any provision of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
23.11 Pronouns. Unless otherwise stated in this Agreement, a reference to the singular includes the plural and vice versa.
23.12 Order of Precedence. The parties hereby incorporate all Attachments into this Agreement by reference. In the event of inconsistency between any Attachment and this Agreement, unless the Attachment expressly provides that it prevails, the relevant provisions of this Agreement will prevail.
23.13 Headings. Headings and titles used in this Agreement are for convenience only and do not form a part of this Agreement.
23.14 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements (express or implied), proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement. Acceptance of any Order by RightForge is made upon the express understanding that it will be governed by the terms and conditions of this Agreement only and that any additional, conflicting, or inconsistent terms and conditions which may appear in any Order provided by Customer will be void and have no force and effect notwithstanding any acceptance or execution by RightForge. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of the parties.