Last Updated 3/31/2017

Terms of Service

These Rainforest Services Terms and Conditions govern access to and use of Rainforest Services (as defined in Section 1) by you the Customer, as well as any individual or entity (including employees, agents, and contractors) you allow to access and use the Rainforest Services. These Terms and Conditions, your Order Form and any attachments form your agreement (collectively the “Agreement”) with Rainforest and govern the use of Rainforest Services. As a condition of accessing the Rainforest Services, you accept this Agreement. Specific services terms, product details and any applicable license and/or subscription terms will be set forth below in the applicable Order Form(s), which will apply to use of the Rainforest Services subject to this Agreement. This Agreement constitutes a binding legal agreement between you and Rainforest QA, Inc., a Delaware corporation (“Rainforest,” “we,” “us,” and “our”). Please read these terms carefully and print a copy for reference.

We may modify this Agreement or any additional terms, which are relevant to a particular Rainforest service, to reflect changes in the law or to the Rainforest Services.

We may, in our sole discretion, modify this Agreement with or without notice to you. The "Last Updated" date at the top of these Terms will indicate when the latest modifications were made. We will post the revised Agreement on the Site (as defined in Section 1, below). PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE RAINFOREST SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT. You agree that we shall not be liable to you or to any third party for any modification of the Agreement.

You represent and warrant that if you are an individual, you are of legal age to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, this Agreement and register for the Rainforest Services.

Rainforest may, in its sole discretion, refuse to offer the Rainforest Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that this Agreement is in compliance with all laws, rules, and regulations applicable to you and the right to access the Rainforest Services is revoked where this Agreement or use of the Rainforest Services is prohibited and, in such circumstances, you agree not to use or access the Site or Rainforest Services in any way.

If you or the entity you registered on behalf of has executed a written contract with Rainforest containing terms of service, the terms of such written contract will control over any conflicting terms in these Rainforest Services Terms of Service.

1.  DEFINITIONS

“Account” means a unique account established by Customer to enable its Authorized Users to access and use the Rainforest Services.

“Authorized User” means the individual or individuals authorized by you to use the Rainforest Services.

“Customer” means the individual or entity that purchases a Subscription, creates an Account, accepts this Agreement (whether on behalf of itself or a legal entity) and is responsible for ensuring that Authorized Users comply with this Agreement.  Customer may be referred to in this Agreement as “you” and “your.”

“Customer Data” means any content, materials, data and information that Customer or its Authorized Users enter into the Rainforest Services or data that is generated from Customer’s use of the Rainforest Services (e.g. Customer-specific scripts), including, but not limited to, any data about Customer, Authorized Users, or Customer’s website. Customer Data shall not include any component of the Rainforest Services or material provided by or on behalf of Rainforest.

“Documentation” means Rainforest’s then-current technical and functional documentation for the Rainforest Services as made generally available by Rainforest.

“Order Form” means the service-specific terms and conditions applicable to a particular Rainforest Service, which may include the Subscription, Term, fees, and other information.

“Rainforest Services” means the Rainforest quality assurance (QA) platform services that can be accessed on the Site by Customer pursuant to the Agreement.

“Site” means the web site of Rainforest located at rainforestqa.com, and other select domains owned by Rainforest.

“Subscription” means the subscription for Rainforest Services as described in an applicable Order Form.

“Subscription Term” means the period of effectiveness of the Subscription.

“Term” means the period of effectiveness of this Agreement, as specified in Section 6 below.

2. USAGE AND ACCESS RIGHTS

2.1 Right to Use. Subject to the terms and conditions of this Agreement, Rainforest will provide the Rainforest Services in accordance with the applicable Order Form and Rainforest grants to you a limited non-exclusive, non-transferrable right and license during the Term, solely for your internal business purposes and in accordance with the Documentation, to: (a) use the Rainforest Services; (b) implement, configure and permit your Authorized Users to access and use the Rainforest Services; and (c) access and use the Documentation. You agree that you will not access the Services by any means except through the interface provided by Rainforest for access to the Services. Creating or maintaining any link from another website or application to any page or functionality on the Services without the prior written authorization of Rainforest is prohibited. Running or displaying the Services or any information or material displayed on the Services in frames or through similar means on another website or application without the prior written authorization of Rainforest is prohibited. Any permitted links to the Rainforest Services must comply with all applicable laws, rules, and regulations.

2.2 Restrictions. You shall not, and shall not permit others to, do the following with respect to the Rainforest Services:

  • (a) use the Rainforest Services or allow access to it in a manner that circumvents contractual usage restrictions or that exceeds your authorized use or usage metrics set forth in this Agreement or the Subscription;

  • (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Rainforest Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement;

  • (c) access or use the Rainforest Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Rainforest Services or allow access by a direct competitor of Rainforest;
  • (d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Rainforest Services or technologies except as expressly permitted elsewhere in this agreement or by law, unless and then only to the extent permitted by applicable law without consent;

  • (e) use the Rainforest Services or Documentation in a way that (i) violates or infringes upon the rights of a third party, including those pertaining to contract, intellectual property, privacy or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene; or 

  • (f) interfere with or disrupt the integrity, operation or performance of the Rainforest Services or interfere with the use or enjoyment of it by others by, among other things, using it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or circumvent or disclose the user authentication or security of the Rainforest Services or any host, network, or account related thereto or use any aspect of the Rainforest Services other than those specifically identified on the Site for a Subscription.

2.3 Suspension of Access. Rainforest may suspend any use of the Rainforest Services, or remove or disable any Account or content that Rainforest reasonably and in good faith believes violates this Agreement.  Rainforest will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless Rainforest reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the Rainforest Services or a third party.  Under circumstances where notice is delayed, Rainforest will provide the notice if and when the related restrictions in the previous sentence no longer apply.

2.4 Support. Rainforest will make available to you the Support as described in the General Service Level Support Terms.

3. OWNERSHIP

3.1 Customer Data. Customer Data processed using the Rainforest Services is and will remain, as between you and Rainforest, owned by you.

3.2 Rainforest Services. Rainforest or its licensors own all right, title and interest in and to any and all copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Rainforest Services and Documentation, any improvements, design contributions or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder.

3.3 Feedback. You hereby assign to Rainforest all right, title, and interest in and to any recommendations, suggestions, enhancement requests or other feedback provided by you to Rainforest concerning the Rainforest Services (“Feedback”), and Rainforest is free to make unrestricted use of the Feedback without any necessity of payment to you.

3.4 Third Party Products or Services. Customer may choose to use products or services that are provided or supported by third parties (“Third-Party Services”) for use with Rainforest Services. Third-Party Services are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third Party Services and Customer, and Rainforest assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services.

4. CUSTOMER DATA, PERSONALLY IDENTIFIABLE DATA AND DATA PROTECTION

4.1 Customer Data. You shall be responsible for Customer Data that you provide or use through your use of the Rainforest Services. Further, you are solely responsible for determining the suitability of the Rainforest Service for your business or organization and complying with any regulations, laws, or conventions applicable to Customer Data and your use of the Rainforest Service. Rainforest will take reasonable technical and organizational measures designed to keep the Customer Data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access. As a condition of Customer’s use and access to the Rainforest Services, you hereby grant Rainforest a royalty-free, fully-paid up, perpetual, irrevocable, transferable and sublicenseable right to use for services optimization, new services development, and reporting purposes transactional data based on the Rainforest Services activity originating from you solely in an aggregate and anonymous manner that does not identify you or Customer.

4.2 Personally Identifiable Data. You acknowledge and agree that no personally identifiable information is required for the Rainforest Services and will use your commercially reasonable efforts to prevent sharing of such information with the Rainforest Services and Rainforest.

4.3 Privacy. You consent to Rainforest’s collection, use and disclosure of Customer Data as described in the Rainforest Privacy Policy , which describes, among other things, the use of Customer Data to monitor and enforce compliance of your Subscription, the Rainforest Services, and this Agreement.

5. FEES AND PAYMENT TERMS

5.1 Subscription. The prices, features, and options of the Rainforest Services depend on the Subscription described in your Order Form(s) as well as any changes instigated by you. Rainforest does not warrant that a particular subscription plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular subscription plan without notice.

5.2 No Refunds. You will timely pay Rainforest all fees associated with your Subscription, Account or use of the Rainforest Services, including, but without limitation, by Authorized Users.  Your payments are non-refundable except as expressly provided in this Agreement.  Charges for pre-paid Subscriptions will be billed to you in advance.  Charges for per-use purchases will be billed in arrears.

5.3 Recurring Charges. When you purchase a Subscription, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use.  You must promptly notify us of any change in your invoicing address and must update your Account with any changes related to your payment method.  BY COMPLETING YOUR REGISTRATION FOR A SUBSCRIPTION, YOU AUTHORIZE RAINFOREST OR ITS AGENT TO CHARGE YOUR PAYMENT METHOD ON A RECURRING (E.G., MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR (a) THE APPLICABLE SUBSCRIPTION CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE RAINFOREST SERVICES. The Authorization continues through your Subscription Term and any Renewal Term (as defined in Section 6.2, below) until you cancel as set forth in Section 6 of this Agreement.   

5.4 Late Fees & Collection Costs. If Rainforest does not receive payment from your payment method, you agree to pay all amounts due upon demand.  Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid.  You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Rainforest to collect any amount that is not paid when due.  Rainforest may accept payment in any amount without prejudice to Rainforest’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Rainforest may not be withheld or offset by you for any reason against amounts due or asserted to be due to you from Rainforest.

5.5 Invoices. Rainforest will provide billing and usage information in a format we choose, which may change from time to time.  Rainforest reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment.  You agree to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice.  If you do not bring such problems/discrepancies to our attention within thirty (30) days, you agree to waive your right to dispute such problems or discrepancies.

5.6 Billing Cycles. Billing cycle end dates may change from time to time.  When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. You agree that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from your payment card issuer until submission of the accumulated charge(s). 

5.7 Tax Responsibility. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on Rainforest’s net income (collectively, “Taxes”). You shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Rainforest Services. Taxes shall not be deducted from the payments to Rainforest, except as required by law, in which case you shall increase the amount payable as necessary so that after making all required deductions and withholdings, Rainforest receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.. You hereby confirm that Rainforest can rely on the name and address set forth in your registration for a Subscription as being the place of supply for sales tax purposes. Rainforest’s and your obligations under this Section 5.7 (Tax Responsibility) shall survive the termination or expiration of this Agreement.

6. TERM AND TERMINATION

6.1 Term. The Term of this Agreement begins on the date you accept it and continues until your Subscription expires or your use of the Rainforest Services ceases (including as a result of termination in accordance with this Section 6), whichever is later.

6.2 Subscription Term and Automatic Renewals. Your Subscription automatically renews unless your Order Form specifies otherwise.  If you purchase a Subscription, it will automatically renew for successive one-year periods, unless you or Rainforest provides written notice of its intent not to renew no later than 60 days prior to the end of the current Term. Each renewal period is a “Renewal Term.”  You authorize us to collect the then-applicable fees and any taxes for a Renewal Term. Subscription fees and features may change over time and we may recommend a new Subscription that is comparable to your previous Subscription that is ending.  If you accept the new Subscription, its terms and conditions with this Agreement will apply in the Renewal Term and thereafter.

6.3 Default; Termination by Rainforest. You will be in default of this Agreement if: (a) you fail to timely pay any amount owed to us or an affiliate of ours; (b) you or an Authorized User associated with your Account breach any provision of this Agreement or violate any published policy applicable to the Rainforest Services; (c) you are or become subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the Rainforest Services by you (or your Authorized Users) creates legal risk for Rainforest or presents a threat to the security of the Rainforest Services or Rainforest’s customers.  If you are in default, we may, without notice to you: (a) suspend your Account and use of the Rainforest Services; (b) withhold refunds and terminate your Account; (c) charge reactivation fees in order to reactivate your Account; and (d) pursue any other remedy available to us.

6.4 Effect of Termination. If this Agreement expires or is terminated for any reason: (a) you will pay to Rainforest any amounts that have accrued before, and remain unpaid, as of the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of your liabilities to Rainforest that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to you with respect to the Rainforest Services and intellectual property will immediately terminate; (d) Rainforest’s obligation to provide any further services to you under this Agreement will immediately terminate, except any such services that are expressly to be provided following expiration or termination of this Agreement; and (e) the provisions of Sections 2.2, 2.4, 3, 4,5.2, 5.4, 5.7, 6.4, 7.2, 8, 9, 10 and 11 will survive, as well as provisions designated to survive under any Order Form and accompanying attachments and Exhibits to the Agreement.

7. WARRANTIES AND DISCLAIMERS

7.1 Customer Warranties. You hereby represent and warrant to Rainforest that: (a) you have all requisite rights and authority to use the Rainforest Services under this Agreement and to grant all applicable rights herein; (b) you are responsible for all use of the Rainforest Services associated with your Account; (c) you are solely responsible for maintaining the confidentiality of your Account names and password(s); (d) you agree to immediately notify us of any unauthorized use of your Account of which you become aware; (e) you agree that Rainforest will not be liable for any losses incurred as a result of a third party's use of your Account, regardless of whether such use is with or without your knowledge and consent; (f) you will use the Rainforest Services for lawful purposes only and subject to this Agreement; (g) any information you submit to Rainforest is true, accurate, and correct; and (h) you will not attempt to gain unauthorized access to the System or the Rainforest Services, other accounts, computer systems, or networks under the control or responsibility of Rainforest through hacking, cracking, password mining, or any other unauthorized means.

7.2 Disclaimer. THE RAINFOREST SERVICES, DOCUMENTATION, AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND RAINFOREST: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE; AND NON-INFRINGEMENT; AND (c) DOES NOT WARRANT THAT THE RAINFOREST SERVICES, DOCUMENTATION OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE RAINFOREST SERVICES, DOCUMENTATION OR SITE.  YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF RAINFOREST TO ANY THIRD PARTY.  USE OF THE RAINFOREST SERVICES, DOCUMENTATION AND SITE ARE AT YOUR SOLE RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RAINFOREST OR ON OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you.  In that event, such warranties are limited to the maximum extent permitted by, and for the minimum warranty period allowed by the mandatory applicable law.

8. CUSTOMER INDEMNIFICATION OBLIGATIONS

You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to: (a) use of the Rainforest Services by you or your Authorized Users; (b) violation of this Agreement by you or your Authorized Users; (c) infringement of any intellectual property or other right of any person or entity by you or your Authorized Users; or (d) the nature and content of all Customer Data  processed by the Rainforest Services.

9. LIMITATIONS OF LIABILITY

9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, RAINFOREST WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.

9.2 Damages Cap. UNDER NO CIRCUMSTANCES WILL RAINFOREST'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR OR YOUR AUTHORIZED USERS’ USE OF THE RAINFOREST SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO RAINFOREST FOR THE RAINFOREST SERVICES GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATION OF LIABILITY IN CERTAIN INSTANCES, PORTIONS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  IN THAT EVENT, SUCH EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW (AND OUR LIABILITY SHALL BE LIMITED OR EXCLUDED AS PERMITTED UNDER MANDATORY APPLICABLE LAW).

9.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties.  This allocation is reflected in the pricing offered by Rainforest to you and is an essential element of the basis of the bargain between the parties.  Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.

10. CONFIDENTIALITY

10.1 “Confidential Information” means any trade secrets or other information of Rainforest or Customer, whether of a technical, business, or other nature (the “Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure.  Confidential Information includes the terms and conditions of this Agreement, as well as pricing plans or discounts, and the features and functionality of the Services.  Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the disclosing party; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.

10.2 Restricted Use and Nondisclosure. During and after the Subscription Term, Recipient will: (a) use the Confidential Information of the other party only for purposes that are within the scope of this Agreement; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors, consultants and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. 

10.3 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.

10.4 Ownership. Recipient acknowledges that, as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing party.  Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing party’s Confidential Information.  Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.

10.5 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 10 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain.  Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.  Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 10, has the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 10.

11. GENERAL

11.1 Relationship. At all times, the parties are independent contractors, and are not the agents or representatives of the other.  This Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties.  Non-parties do not benefit from and cannot enforce this Agreement.  There are no third-party beneficiaries to this Agreement.  You must not represent to anyone that you are an agent of Rainforest or is otherwise authorized to bind or commit Rainforest in any way without Rainforest’s prior written authorization.

11.2 Export Control Laws. You acknowledge that the Rainforest Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Rainforest makes available to its customers (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”).  You represent and warrant that you and your Authorized Users: (a) are not located in, under the control of, or a national or resident of an embargoed country; (b) are not a prohibited end user under Export Laws; and (c) will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by export laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or does business.  You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Rainforest Services.  You shall advise Rainforest in advance in the event you propose use of the Excluded Data that requires Rainforest to obtain additional licenses, permits and/or approvals from any government in the jurisdiction where you intend to use the Rainforest Services.  Upon being advised of such a requirement, Rainforest may at its sole discretion: (a) terminate your Account; (b) obtain such licenses, permits, and/or approvals as may be required; or (c) modify this Agreement such that additional licenses, permits, and/or approvals are no longer required to be obtained by Rainforest.

11.3 Third Party Content. We may provide, or third parties may provide, links to other third-party web sites or resources that are beyond our control.  We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us with respect to such sites.  RAINFOREST IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE.  Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner.  You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.

11.4 Marketing. By agreeing to use the Services, you, on behalf of your organization, expressly authorize Rainforest, to produce, publish, and share a case study on the Site about your organization’s use of Rainforest, and allow Rainforest to use your organization’s name and logo in self-promotional materials such as press releases, advertisements, brochures, etc., without compensation.

11.5 Assignability. You may not assign your rights or obligations under this Agreement without Rainforest’s prior written consent.  If consent is given, this Agreement will bind your successors and assigns.  Any attempt by you to transfer your rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.  Rainforest may freely assign its rights, duties, and obligations under this Agreement.

11.6 Notices. Except as otherwise permitted by this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) Rainforest Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in your registration information or on the Site for Rainforest, with a copy, in the case of Rainforest, to legal@rainforestqa.com . Either party may change its address for receipt of notice by notice to the other party through a notice provided in accordance with this Section 11.  Notices are deemed given upon receipt if delivered using Rainforest Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.

11.7 Force Majeure. Except for any payment obligations, neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control).  The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable.  Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.

11.8 Mandatory Arbitration, Waiver of Class Actions. 

  • (a)  General.  ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE RAINFOREST SERVICES, DOCUMENTATION OR THE SITE, INCLUDING WITHOUT LIMITATION FOR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, WILL BE RESOLVED BY BINDING ARBITRATION CONDUCTED BEFORE ONE ARBITRATOR, RATHER THAN IN COURT.  The arbitration shall be administered by the Judicial Arbitration and Mediation Services http://www.jamsadr.com (”JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”).  Either party may initiate the arbitration. The arbitration will be conducted in San Francisco County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof.  Payment of all fees will be governed by JAMS Rules. The parties shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Agreement and, with the exception of disclosure to attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
  • (b) No Class Actions. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION OR ON A REPRESENTATIVE BASIS. You acknowledge and agree that you and Rainforest are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Rainforest otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a court decides that this subsection is not enforceable or valid, then subsections (a) through (d) of this Section 11.8 will be null and void, but the remainder of this Agreement will still apply.
  • (c) Smaller Claims. If your claim(s) total is less than US $2,500.00, then: (i) Rainforest will reimburse filing fees up to a maximum of US $1,000.00, unless the arbitrator determines that your claims are frivolous; (ii) Rainforest will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous; and (iii) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by in-person hearing.
  • (d)  Provisional Remedies.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.

11.9 Governing Law & Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary.  For purposes of determining the governing law, the parties agree that Rainforest is the proponent of this Agreement. Notwithstanding the parties’ agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party's rights or property pending the completion of arbitration. The parties submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A.

11.10 Language and Translations. Rainforest may provide translations of this Agreement or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.

11.11 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

11.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the grant of any license to you under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

11.13 Entire Agreement. This Agreement, which includes the language and paragraphs preceding Section 1, is the final, complete, and exclusive expression of the agreement between these parties regarding the Rainforest Service(s) provided under this Agreement.  This Agreement supersedes and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Rainforest Service(s) under this Agreement) with respect to the subject matter hereof and apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Rainforest hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on the terms and conditions of this Agreement as offered by Rainforest. Except as explicitly permitted in this Agreement, no modification or amendment of this Agreement shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the applicable Order Form; and (b) these Rainforest Services Terms and Conditions.