This Agreement, titled "Raken Terms and Conditions of Use" (hereinafter "Agreement") is in electronic form and constitutes an agreement between Raken, Inc., a Delaware corporation with an address at 5600 Avenida Encinas, Suite 140E, Carlsbad, CA 92008 ("Raken") and you (as defined in paragraph 1(k) below) with respect to your access and/or use of the services and software of Raken (the "Services"). Your access and/or use of the Services shall legally bind you to this Agreement.
Definitions. As used in this Agreement:
- "Administrative Address" means the email address that you provide us with in order to receive notices regarding billing, modifications to this Agreement or our Services and/or Updates (as defined in paragraph 1(i) below).
- "Application" shall mean our cloud-based, mobile, daily reporting platform as we may modify or update from time to time.
- "Subscriber Account" means an account established by Raken to enable you to use the Services.
- "Data" shall mean any and all information entered by you utilizing the Application, including but not limited to information regarding accidents, delays, site safety and quality control observations, project photos, weather, task lists, equipment rental, subcontractors and jobsite visitors.
- "Raken," "we," "us" or "our" shall refer to Raken, Inc.
- "Order Form" means the online form via which you provided certain Personally Identifying Information (as defined below in paragraph 7(a) below), chose a payment option and designated the number of users who will use the Services under your Subscriber Account.
- "Party" shall refer to you or Raken individually and "the Parties" shall refer to you and Raken jointly.
- "Subscription Fee" shall mean the monthly or other periodic fee(s) which you are assessed by Raken and obligated to pay for implementation of the Services under your Client Account. The Subscription Fee shall be determined by the number of users. The Subscription Fee does not include any fees or charges related to initialization and set-up or establishing and maintaining your Internet connection.
- "Updates" shall mean updates, modifications, alterations and amendments which change, eliminate or add any functionality, feature or appearance, corrects any bug, or addresses any security, technical, legal or regulatory issue.
- "User Account" means an account for each person who uses the Services under your Client Account. User Accounts may not be shared between users, it being understood that Raken grants use of the Services under this Agreement on a "per seat" basis.
- "You" or "your" shall refer to (i) the individual or entity registered to the Client Account, and (ii) any person or entity, including but not limited to your employees and independent contractors, authorized by you to use the Services under the Client Account.
- Raken grants you the non-exclusive, non-transferable right and license during the Term to access and use the Services as set forth in this Agreement. Such access and use shall be limited to the number of User Accounts covered by your Subscription Fee.
- Your use of the Application and any other software furnished in conjunction with the Services shall, at all times, be in full compliance with this Agreement and any license that may be separately presented to you. If no license is presented to you, then you may use such software only as provided in this Agreement and only for the number of User Accounts covered by your Subscription Fee. Whenever "Services" are referred to in this Agreement, it shall include the Application and any other software furnished by Raken.
- For security purposes, Raken may cancel or suspend any username which has not accessed the Services for an extended period of time as determined by Raken in its sole discretion. If Raken cancels a username, the user will need to establish a new Subscriber Account or User Account (as applicable).
Term and Termination.
- Term. Except as provided in paragraph 3(b) below, the term of this Agreement ("Term") shall consist of an "Initial Period" commencing immediately and such renewal periods of one (1) calendar month each ("Renewal Periods"), which Renewal Periods shall be deemed automatically invoked by your continued use of the Services and/or payment of your Subscription Fee. As used herein, the "Initial Period" shall mean (i) the remaining days of the first month in which you initiate a paid subscription to the Services plus the full calendar month that follows; or (ii) if your paid subscription to the Services begins on the first day of any calendar month, then that calendar month only. In the case of 3(a)(i), your Subscription Fee for the Initial Period shall be increased to include the pro-rata amount due for the partial first month.
- Trial Period. If you have opted for a Trial Period, then the Term shall commence immediately and (i) if you do not initiate a paid subscription with Raken, the Term shall terminate automatically at the end of the Trial Period; or (ii) if you initiate a paid subscription, then, following the Trial Period, the Term shall continue as set forth in paragraph 3(a) above.
- You shall have the right to terminate the Term at any time, provided, however, that Raken shall have no obligation to provide you with a refund for any pre-paid period or unused Services.
- Notwithstanding any other provision of this Agreement, Raken shall have the right to terminate the Term immediately upon notice to you in the event that (i) you have breached any of your obligations under this Agreement and failed to cure such breach within fifteen (15) days after you receive written notice from Raken specifying the nature of the alleged breach; (ii) you engage in any of the acts prohibited under paragraph 5(b) below; or (iii) Raken ceases to furnish the Services to other firms and enterprises of similar size and requirements as yours. In the event of termination by Raken pursuant to paragraph 3(d)(iii), your sole remedy shall be to receive a refund of those Subscription Fees paid by you in advance for any full monthly period that follows the date of termination.
- No termination, however caused, shall relieve you of your obligations which arose under this Agreement prior to the date of such termination.
Modifications and Updates.
- We shall have the right to adjust or increase the Subscription Fees or add fees for additional Services ("Fee Adjustment") and/or modify this Agreement from time to time by changing, eliminating or adding any term or condition ("Modifications") as follows:
- Modifications that we make together with any Updates, or that do not materially affect your use of the Services, or that are required by law shall take effect immediately upon being posted on our website at http://www.rakenapp.com, with a notice sent to your Administrative Address, provided, however, that we shall endeavor, wherever possible, to notify you of such Modifications at least seven (7) days before they take effect.
- Provided that you use the Services without interruption, any other Modifications and any Subscription Fee Adjustment shall take effect no earlier than (i) thirty (30) days from the date on which such Modification or Fee Adjustment is posted on our website as aforesaid, or (ii) expiration of the period for which you have pre-paid for the Services.
- We may require you to download Updates to your devices in order for you to continue using the Services. After an Update, some functionality or features may change or no longer be available. Because of the nature of the Services, Updates are applied universally. Consequently, you hereby accept all Updates as a condition to your access and use of the Services. Notices for Updates shall be posted on our website at https://support.rakenapp.com as early as practicable.
- Your use or continued use of the Services after a Modification, Fee Adjustment and/or Update takes effect shall constitute your agreement to and acceptance of same. In the event you do not accept any of the foregoing, your sole remedy shall be to cease accessing and/or using the Services.
- You shall:
- maintain and protect the secrecy of your username and password;
- if you have a Subscriber Account, be fully responsible at all times for any activity that takes place under your Subscriber Account and any associated User Account;
- if you have a User Account only, be fully responsible at all times for any activity that takes place under your User Account;
- as between you and Raken, bear sole responsibility for your Internet connection during your use of the Services;
- use the Services only for your internal business purposes of processing, managing, storing, maintaining and using Data;
- use the Services only for that number of users (with one user per User Account) authorized under your subscription to Raken;
- as between you and Raken, be solely responsible for the quality, performance and all other aspects of Data;
- ensure that Raken has current information necessary for billing and continuation of the Services; and
- pay the Subscription Fee and other sums required to be paid under this Agreement on a timely basis.
- You shall not:
- gain or attempt to gain unauthorized access to or use of the Services or any part thereof;
- use any means not authorized in writing by Raken to modify, reroute, or attempt to modify or reroute the Services;
- resell or redistribute the Services or any part thereof;
- copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works
- modify, alter, transfer or sell any information provided by the Services, including without limitation the Application and any other software, except to the extent that such activities are required for your access to and use of the Services and Data as authorized in this Agreement; or
- attempt to copy, archive, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the Application or other software, or permit any person to do any of the foregoing.
- You warrant and represent that your use of the Services shall at all times comply with all applicable laws and regulations.
- You shall:
- Invoices for Payment and Payment Due Date. Invoices are sent in electronic form (PDF or otherwise). We do not provide paper invoices. Payment is due upon receipt of invoice and may be paid by check, ACH, credit card or any other method authorized by Raken. Any payment made after the 15th day of each month shall be considered overdue and subject to the charges specified in paragraph 6(c) below. In order not to experience late payment charges or interruptions in the Services, Subscriber Account holders must keep their information (including their Administrative Address) current.
- Billing Errors. If we make an error on your bill, you must notify us within thirty (30) days of the invoice date. Following such notification, we shall verify the information you have provided us and make any appropriate adjustments where applicable.
- Overdue Payments. If, for any reason, you fail to make timely and full payment of any invoice, we may (i) for each month such amount remains overdue, assess a late charge on the overdue amount equal to the lesser of One and a Half Percent (1.5%) per month or the maximum monthly rate that is permitted by law; and (ii) prohibit you from using the Services. Such late charges must be paid when Raken bills for them. In addition, you must pay for all reasonable costs we incur to collect any past due amounts, including but not limited to attorneys' fees, court costs, legal expenses and fees to third party debt collection companies.
- Information Concerning Subscriber and User Accounts. In order to provide you with the Services, Raken may collect or compile the following information:
- "Personally Identifying Information." Personally Identifying Information is information that you supply us with and may include your name, company name, e-mail address, billing address, mailing address, billing information, credit card, PayPal or other payment account information and your username and password to access the services;
- "Usage Information." Usage Information is any non-Personally Identifying Information available to Raken when you use the Services, including but not limited to the Internet Protocol (IP) address used to connect your device to the internet, e-mail address, operating system, platform, device information and the like; and
- "Non-Identifying Statistical Information." Non-Identifying Statistical Information is non- Personally Identifying Information about your construction projects that is available to Raken when you use the Services, which such information may be extracted from Data but does not identify and cannot be used to identify either users or particular construction projects.
- Use of Information Collected by Raken.
- From time to time we may use your address, including your email address, to send you notices or offers about Raken's services. We consider Personally Identifying Information to be highly confidential and Usage Information to be confidential to our operations.
- We do not sell, trade or rent either Personally Identifying or Usage Information to anyone not affiliated with us and we do not partner or enter into business relationships with ad server companies. However, should Raken be sold or transferred to another entity, Personally Identifying Information and Usage Information is likely to be part of the sale or transfer. In addition we may disclose Personally Identifying Information to individuals or entities not affiliated with Raken if we have a good-faith belief that such disclosure is reasonably necessary to:
- Comply with any applicable law, regulation, legal process or enforceable governmental request;
- Enforce this Agreement, including investigation of potential violations;
- Detect, prevent, or otherwise address fraud, security or technical issues; and
- Protect against harm to the rights, property or safety of Raken, Raken's Subscribers and Users or the public.
- We may compile Non-Identifying Statistical Information for use in studies such as those concerning safety and efficiency in your projects, the construction industry and for other purposes related to our business
- Information Concerning Subscriber and User Accounts. In order to provide you with the Services, Raken may collect or compile the following information:
Raken's Intellectual Property Rights.
- Raken and other marks that may be indicated on our website and/or in our software and documentary materials, together with any logo forms thereof, are trademarks and/or service marks of Raken and may be registered in the United States or in other jurisdictions, including internationally. Raken's trademarks, service marks and trade dress may not be used in connection with any product or service that is not provided by Raken. Any trademark or service mark not owned by Raken that appears on our website and/or in our software and documentary materials is the property of its owner.
- Raken retains all right, title and interest in and to the Services, including all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein and thereto. This Agreement shall not be deemed to grant or imply any right of any kind or nature to any of Raken's trademarks, trade names, logos, software, system, intellectual property or personal property unless otherwise expressly stated.
Limited Warranties and Disclaimers.
- RAKEN PROVIDES THE SERVICES "AS IS" TO END USER.
- RAKEN MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT
- THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRITY OF DATA, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
- RAKEN DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF END USER'S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT DEFICIENCIES IN THE SERVICES WILL BE CORRECTED.
- RAKEN MAKES NO WARRANTY AS TO THE USE OR THE RESULTS OF USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
- NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, GIVEN BY RAKEN OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY, EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THE LIMITATIONS ON WARRANTIES CONTAINED IN THIS PARAGRAPH 9.
Limitations on Liability.
- IN NO EVENT SHALL RAKEN OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES ("RELATED PERSONS") BE LIABLE TO YOU OR ANY THIRD PARTY FOR: ANY COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT SERVICES OR GOODS; LOSS OR CORRUPTION OF DATA; LOSS OF ANTICIPATED SAVINGS, BUSINESS, BUSINESS INFORMATION, CONTRACTS, GOODWILL, PRODUCTION, PROFITS OR REVENUES; WASTED OPPORTUNITY OR WASTED MANAGEMENT AND/OR STAFF TIME; BUSINESS INTERRUPTION; FAILURE TO MEET ANY DUTY, INCLUDING THAT OF GOOD FAITH OR REASONABLE CARE; NEGLIGENCE; LOSSES ARISING OUT OF PERSONAL INJURY OR DEATH; ANY INDIRECT, SPECIAL, REMOTE OR SPECULATIVE DAMAGE; OR ANY OTHER DAMAGE ARISING OUT OF OR RELATED TO THE INSTALLATION, USE, INABILITY TO USE OR NON-USE OF SERVICES EVEN IF RAKEN AND ITS RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- TO THE EXTENT THAT THE LIABILITY OF RAKEN AND ITS RELATED PERSONS IS NOT EXCULPATED UNDER PARAGRAPH 10(a) ABOVE, AND REGARDLESS OF THE LEGAL BASIS FOR ANY CLAIMS (AS DEFINED IN PARAGRAPH 13(e) BELOW), THE LIABILITY OF RAKEN AND ITS RELATED PERSONS SHALL BE LIMITED TO DIRECT CALCULABLE MONETARY DAMAGES THAT SHALL NOT EXCEED THE LESSER OF ONE HUNDRED DOLLARS ($100.00) OR THE SUBSCRIPTION FEE(S) PAID BY YOU FOR THE MONTHLY PERIOD(S) IN WHICH SUCH DAMAGE OCCURRED OR THE MIN.
Indemnification.You shall and do hereby indemnify, defend and hold harmless Raken its Related Persons from and against any third party lawsuit, claim or demand, and the losses, costs, damages and expenses (including reasonable attorneys' fees, court costs and legal expenses) resulting therefrom, which lawsuits, claims or demands arise out of or relate to (i) any breach or alleged breach by you of the representations, warranties or obligations made by you in this Agreement; (ii) the loss, corruption or disclosure of Data; and (iii) your use, inability to use or non-use of the Services.
Notices.Any notice which you are required or desire to give to Raken shall be in writing and may be sent pre- paid via by certified U.S. mail, a recognized express delivery service or via e-mail; provided, however, that notice via e-mail shall be effective only if you receive a response from Raken indicating that such notice was received. Notice sent via a recognized delivery express service or U.S. mail shall be deemed effective two days after sending. Notices sent to Raken shall be sent to: email@example.com.
- Assignment and Delegation. Neither Party to this Agreement may assign any of their rights or delegate any of their obligations under this Agreement, nor may they assign this Agreement in gross, except to parent, subsidiary, or successor by merger or consolidation, or to a purchaser of all or substantially all such Party's assets.
- Cumulative Remedies. All rights and remedies of the Parties, whether at law or in equity, shall be cumulative and none of them shall be in limitation of any other right or remedy.
- Enforceability/Severability. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision hereof shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein, provided, however, that if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intention.
- Entire Agreement. This Agreement, together with your Subscription Plan, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to said subject matter.
- Governing Law. This Agreement and any dispute or controversy arising out of or related hereto and/or the relationship between the Parties established herein ("Claims") shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of California without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in San Diego, California, and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
- Headings. The paragraph headings in this Agreement are solely for the convenience of the parties and have no legal or contractual significance.
- Rights of Third Parties. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever unless said right or remedy is specifically granted herein to such third party.
- Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
- Waiver. No provision of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, it being understood that waiver may only occur by an instrument in writing signed by an authorized officer of the Party against whom such waiver is sought to be enforced. In the event of a waiver, whether in writing or by operation of law, such waiver shall not constitute a waiver of any other provision or of the same provision on another occasion.