SaaS Subscription

IMPORTANT - END USER’S RIGHTS AND OBLIGATIONS AND ALL USE OF SERVICES ACCESSED BY END USER FROM, OR PROVIDED TO END USER BY, ROCKET SOFTWARE, INC. OR ITS SUBSIDIARIES (“ROCKET”), ON OR AFTER THE DATE SPECIFIED BELOW, ARE SUBJECT TO THESE SOFTWARE-AS-A-SERVICE (“SaaS”) SUBSCRIPTION TERMS (“TERMS”). “SERVICE” INCLUDES ALL RELATED DOCUMENTATION, REVISIONS AND UPDATES THAT REPLACE OR SUPPLEMENT THE SERVICE. BY CLICKING THE “I ACCEPT” BUTTON, OR, BY DOWNLOADING, INSTALLING, RECEIVING OR USING A SERVICE, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “I ACCEPT” BUTTON, DOWNLOAD, INSTALL, RECEIVE OR USE THE SERVICE, AND YOU WILL NOT HAVE A RIGHT TO USE ANY PART OF THE SERVICE. THIS IS A LEGAL AGREEMENT BETWEEN YOU, ON BEHALF OF YOUR ORGANIZATION (“END USER”) AND ROCKET. YOU AGREE TO DO BUSINESS ELECTRONICALLY, INCLUDING CONTRACT FORMATION, ORDER PLACEMENT AND ACCEPTANCE. AN ORDER YOU PLACE AND ROCKET ACCEPTS, OR USE OF ROCKET SERVICE, ON ANY ROCKET WEBSITE OR PLATFORM CREATES FULLY ENFORCEABLE OBLIGATIONS SUBJECT TO THESE TERMS. YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF YOUR ORGANIZATION.

 

1. ACCESS AND USE OF ROCKET SUBSCRIPTION SERVICE.

a.  Orders. Subscriber may purchase Subscription Service under a quote or online registration form (“Order Form”) provided by Rocket and agreed by Subscriber. Rocket will provide an Order Form to Subscriber that specifies Subscription Service by Application, the Measured Use, and Fees to implement Subscription Service. Subscriber will place a binding order, subject to Rocket’s acceptance, by executing an Order Form, submitting a purchase order to Rocket, or completing an online registration and Subscription purchase. Rocket accepts Subscriber’s order by the earlier of signing an Order Form, processing Subscriber’s online Subscription, or providing services. Rocket may, in its sole discretion, accept Subscriber’s purchase order as an Order Form.

b. End Users. Subscriber may provide access and use of the Subscription Service it has purchased to Subscriber’s employees and Subscriber’s Business Affiliates and their employees (“End User”).  Each End User will register online with Rocket and is subject to these Terms in using Subscriber’s Subscription Service. Subscriber is solely responsible for administration of its Subscriptions and End Users.

2. SUBSCRIPTION SERVICE

a. Subscription Term. After the initial Subscription Term, the Subscription renews automatically for successive annual Subscription Terms for the current Subscription Service and Users, unless terminated according to Section 7 below.

b. Subscription Service. Rocket will provide Subscriber access to use the most current version of Subscription Service during the Subscription Term. Subscription Service may be updated at Rocket’s discretion, however, Subscription Service does not guarantee additional future functionality or features.

c. Provisioning. Subscription Service may require implementation or configuration services, subject to Rocket’s then current time and materials charges for professional services. The parties will use reasonable commercial efforts to meet the date to implement Subscription Service, Users, or changes to Subscription Service. If Rocket delays a Start Date, Rocket will notify Subscriber of a revised Start Date. If Subscriber delays a Start Date, Subscriber will reimburse Rocket for the actual cost Rocket determines it is unable to mitigate with reasonable commercial effort.

d. Subscription Use. Except as otherwise specified herein, Rocket grants to Subscriber and each End User as applicable, a nonexclusive, nontransferable right to use Subscription Service for Subscriber’s own internal business purposes, subject to these terms (“Subscription”). Subscriber is responsible for its use of and results from Subscription Service and will use Subscription Service according to Rocket’s policies, Documentation and these terms.

e. Client Software License. If an Application requires Client Software as part of Subscription Service, Rocket grants to Subscriber a License for the Client Software according to Subscriber’s Subscription. Rocket may terminate a License by written notice immediately if Subscriber infringes Rocket’s or its licensors’ Intellectual Property or does not comply with the License terms. When a License or Subscription terminates, Subscriber will immediately return or destroy Client Software and provide written certification of destruction upon Rocket’s request.

f. Data Storage. If applicable for the Subscription Service purchased by Subscriber, Rocket will provide Subscriber Data storage according to the Order Form and/or Subscription Service description, and Subscriber may purchase additional data storage capacity in designated increments if applicable.

g. Location. If Subscription Service is restricted by Subscriber site, only Subscriber’s End Users at a specified site are permitted to access and use the Subscription Service.

h. Additions. The parties may execute additional Order Forms to add Subscriptions, data storage capacity, and Users. The Subscription Term for additions will be coterminous with the Subscription Term already in effect.

i. Support. Subscription Service includes online and telephone support according to Rocket’s current support policies and these terms:

(i) Rocket’s standard support generally includes: (1) commercially reasonable efforts to resolve problems which cause Application functionality not to perform substantially as described in the Documentation; (2) remote assistance and troubleshooting advice for trained Subscriber personnel to determine cause and address technical problems with Subscription Service; (3) access to Rocket’s problem reporting ticket system; (4) information and status updates for known Application functionality technical issues; and (5) periodic “as available” updates or upgrades to Subscription Service. Subscriber may need to provide User IDs to Rocket for electronic access to test a problem condition or assist in problem resolution. Support may address but not resolve minor or partial loss of functionality, intermittent problems or minor degradation of operations.

(ii) Rocket provides telephone support for Subscription Service 8:00 AM to 5:00 PM, Eastern Standard Time, Monday to Friday, except U.S. Federal holidays. Rocket’s online ticket system is available 24 hours/day, 7 day/week. Rocket will use commercially reasonable efforts to respond to support requests as soon as possible and may not respond in the same day a request is received. Subscription Service and support may be unavailable due to scheduled downtime, maintenance, or circumstances beyond Rocket’s reasonable control. Rocket may schedule downtime at any time without notice if Rocket reasonably determines that not acting immediately could be harmful to Rocket or Subscriber.

(iii) Rocket is not responsible or liable for support or Subscription Service interruption or problems due to: (1) Subscriber or End User systems, information, content, software, scripts, data, files, application programming, web servers or service, materials, equipment, acts or omissions of Subscriber or its agents; (2) virus or hacker attacks; (3) circumstances beyond Rocket’s reasonable control; (4) intentional shutdown for emergency intervention or security incidents; (5) Subscriber configuration changes; (6) Subscriber’s or End User’s failure to comply with Rocket’s security and upgrade policies; (7) Internet or other connectivity between Subscriber’s or End User’s network and Subscription Service or Rocket’s network, or any other network unavailability outside of the Rocket network; or (8) training questions or Subscriber’s or End User’s use of Subscription Service; (9) abuse, misuse, alteration, neglect, accident, unauthorized use or services; (10) acts or omissions of a party other than Rocket.

j. Training. Training and on-site support service are available according to Rocket’s current policies and rates.

 

3. SUBSCRIBER RESPONSIBILITIES

a. Subscriber and End User will:

(i) use the Subscription Service according to the Measured Use which Subscriber has purchased;

(ii) be responsible for its activity through Subscription Service and ensure End Users comply with these terms;

(iii) use current Subscription Service and install and use Client Software and any updates according to the Documentation and these terms;

(iv) be responsible for the accuracy, quality, legality, integrity, ownership, protection, adequate storage, security, privacy and acquisition of Subscriber Data;

(v) prevent unauthorized access to Subscription Service and Client Software, Subscriber User credentials, IDs and passwords;

(vi) comply with laws and regulations in using Subscription Service and Client Software, including data privacy, transmission of technical or personal data, and spam;

(vii) notify Rocket immediately of unauthorized access to, or known or suspected breach of security for, Subscription Service or Client Software, and use reasonable efforts to immediately stop unauthorized access or a known or suspected violation of law or these terms;

(viii) be responsible for properly configuring, programming and operating Subscriber’s or End User’s hardware, software, web sites, content, telephone and internet connections to allow access to and use of Subscription Service and Client Software; and

(ix) comply with Rocket protocols and requirements for using Subscription Service and Client Software and ensure that End Users are adequately trained to use Subscription Service.

b. Subscriber and End User will not:

(i) make Subscription Service, Client Software or Documentation available other than to its End Users, sell, resell, rent, lease or sublicense Subscription Service, Documentation or Client Software, or use Subscription Service to provide time share or other services to third parties;

(ii) permit a third party to access Subscription Service, Documentation or Client Software;

(iii) create derivative works based on Subscription Service, Documentation or Client Software, copy, frame or mirror any part of Subscription Service, other than copying or framing Subscriber Data, content or intranets for Subscriber’s internal business operations;

(iv) reverse engineer Subscription Service or Client Software;                      

(v) access Subscription Service to build a competitive product or service or copy features, functions or graphics of Subscription Service;

(vi) use Subscription Service to store or transmit infringing, libelous, or unlawful or tortious material or transmit material in violation of privacy rights;

(vii) alter Client Software’s copyright or other proprietary rights notices; or

(viii)  use Subscription Service to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, interfere with or disrupt the integrity or performance of Subscription Service or attempt to gain unauthorized access to Subscription Service or related systems.

4. SUBSCRIBER AND END USER DATA

a. License. Subscriber and End User grant Rocket a non-exclusive, nontransferable license to copy, store, transmit and display Subscriber Data as necessary to provide and maintain Subscription Service, including: (i) improving, modifying, monitoring and upgrading Subscription Service; and (ii) as required by law. Subscriber and End User grant Rocket a royalty-free, worldwide, perpetual license to use and incorporate into Subscription Service any suggestion, idea, enhancement, feedback, recommendation or other information Subscriber provides relating to Subscription Service. Subscriber and End User represent and warrant that Subscriber Data provided to Rocket will not violate third party rights or applicable law. 

b. Protection. Rocket will maintain commercially reasonable administrative, physical, and technical safeguards for protection of Subscription Service which includes Subscriber Data. Rocket will access Subscriber Data only to provide Subscription Service and support according to these terms. Subscriber and End User acknowledge that Rocket stores and makes backup copies of Subscriber Data for its standard Subscription Service and maintains such data for a period of time and in a manner consistent with Rocket standard business practices. Rocket is not otherwise responsible for handling Subscriber Data and is not liable for transmission of Subscriber Data or Subscriber’s or End User’s failure to back up or store Subscriber Data, or deletion, correction, destruction, damage to or loss of Subscriber Data, other than to maintain the specified safeguards.

c. Termination. Subject to Clause 13, Rocket may withhold, remove or discard Subscriber Data without notice if Subscriber or End User as applicable breaches these terms, including Subscriber’s failure to make timely payment. No later than 10 days following the date a Subscription ends, Subscriber will provide to Rocket a written request regarding Subscriber Data return or disposal. Rocket will provide an Order Form to Subscriber specifying the service available and related Fee to fulfill Subscriber’s request. If Rocket does not receive the written request within 10 days, or Subscriber does not order the services upon receipt of the Order Form, Rocket may, in its sole discretion, remove, discard or continue to store Subscriber Data and invoice Subscriber for the associated Fees at Rocket’s then current time and materials rates for professional services.

5. ITAR IMPLEMENTATION

a. Implementation. If Subscriber chooses to use Subscription Service in Subscriber’s implementation of an International Traffic in Arms Regulations (“ITAR”) Compliance Program, upon request Rocket will host the Application for the Subscription Service through the Amazon Work Space (“AWS”) GovCloud (http://aws.amazon.com/govcloud-us/), or another third party hosted environment which adheres to ITAR requirements (“GovNetwork”).  Subscriber will agree to and comply with the third party’s agreement terms governing the use of the platform, directly with the third party. If Subscriber stores and processes ITAR-regulated data, Subscriber will comply with ITAR requirements as amended from time to time by the U.S. government. Subscriber represents and warrants that Subscriber: (i) is an individual or entity that qualifies as a U.S. person under applicable regulations; (ii) has and will maintain a valid Directorate of Defense Trade Controls (DDTC) registration; (iii) has full export privileges under U.S. export control laws and regulations and is not a denied or debarred party or otherwise subject to sanctions; (iv) will promptly notify Rocket in the event that Subscriber’s export privileges are revoked or become subject to sanctions; and (v) will maintain an effective program to restrict access and ensure compliance with applicable U.S. export control laws and regulations, including ITAR.

b. Subscriber Responsibilities. Subscriber is responsible for all the physical and logical access controls beyond the GovNetwork, including without limitation Subscriber account access, data transmission, encryption, and appropriate processing and storage of data within the GovNetwork. Subscriber is responsible for verifying that all Users accessing Subscriber content in the GovNetwork are eligible to gain access to Subscriber’s content. Subscriber will not use Subscription Service to process or store classified data. If Subscriber introduces classified data into the GovNetwork, Subscriber is responsible for all sanitization costs incurred by the GovNetwork and Rocket, without limitation.

6. FEES AND PAYMENT

Fees are: (i) nonrefundable; (ii) not decreased during the Subscription Term based on actual End User or data storage usage; and (iii) not cancelable for the Subscription Term. Fees are payable in advance by Subscriber within 30 days from date of invoice, or monthly in arrears if so specified.

a. Subscription Fee. A Subscription Fee is due for a Subscription Term from the Start Date, and is payable in advance either annually, or monthly on the first day of each calendar month, according to the Order Form.  Fees for Subscription Term renewals and Users or Subscriptions added during a Subscription Term will be: (i) at Rocket’s current standard price, due beginning on the Start Date for the Subscription Term renewal or added Users or Subscription; and (ii) charged for the full calendar month in which Users or Subscriptions are added, and coterminous for the remainder of the Subscription Term.

b. Data Storage Fee. 

Subscriber will pay Rocket’s current data storage Fees monthly for data storage ordered or used by Subscriber or End User that is not included in a Subscription Fee. When a Subscription Term ends, Subscriber will continue to pay, and monthly Subscription Fees and data storage Fees will continue to accrue, as long as Rocket stores Subscriber Data. Rocket may hold Subscriber Data until Subscriber has paid Rocket in full for all Fees and charges due.

c. Implementation or Configuration Fee. A Subscription may require a one-time set up Fee or other implementation or configuration Fee, as specified on the Order Form.

d. Variable Use Fees. A Subscription may require transaction, usage or other capacity based Fees in addition to the Subscription Fee. Subscriber will pay Rocket’s current Fees monthly for transactions, usage or capacity ordered or used by Subscriber that are not included in a Subscription Fee.

e. Taxes. Fees do not include taxes. Subscriber will pay all sales, use, customs, excise, value added  and other taxes imposed upon the purchase, sale, license or use of Subscription Service (“Tax”), regardless whether the Tax is included in the invoice Rocket sends to Subscriber, except taxes on Rocket’s net income. Fees payable by Subscriber will not be reduced by any Tax and Subscriber will pay invoiced Fees and Tax, or Subscriber will provide a tax exemption certificate or tax payment receipt prior to Rocket’s delivery of Subscription Service, or proof of payment for Tax within 30 days from invoice date.

f. Verification. Within 15 days of Rocket’s request, on an agreed date, Subscriber or End User as applicable will provide access to its records and operations to enable Rocket to verify compliance with the Agreement. Within 15 days of invoice date, Subscriber will pay additional Fees due for Subscriptions or Users Rocket determines are in excess of Subscription Service purchased, including Fees in arrears and Rocket’s expenses.

g. Termination. All outstanding Fees and payments are due immediately upon termination of Subscription Service or the Agreement, including Fees for the balance of a Subscription Term if Subscription Service is terminated at any time.

7. SUBSCRIPTION SERVICE TERMINATION

a. Either Rocket or Subscriber may terminate Subscription Service by providing written termination notice at least 90 days prior to the end of the current Subscription Term.

b. Rocket may suspend or terminate Subscription Service with 30 days written notice if Subscriber or End User breaches its obligations including timely payment, or without notice if Rocket has a good faith belief that: (i) Subscriber or End User is using Subscription Service for illegal purposes; (ii) the integrity or security of Subscription Service is threatened; (iii) it is necessary to prevent fraud or harm to Rocket, End User or Subscriber; (iv) Subscriber or End User has or will breach its confidentiality obligations, infringe Rocket’s Intellectual Property rights, or assign or transfer its rights or obligations without consent; or (v) it is required by law.

c. Subscriber may terminate Subscription Service with 30 days written notice, subject to a right to cure, if Rocket materially breaches its obligations under Section 8, and Subscriber will be entitled to a pro rata refund of Fees prepaid for the remainder of the Subscription Term after the termination date.

d. Upon termination (i) Subscriber's and End User’s right to use Subscription Service ends, (ii) Subscriber and End User will cease using Subscription Service and, at Rocket’s direction, return or destroy Rocket Confidential Information and Documentation, and (iii) Subscriber will immediately pay Rocket all Fees due.

8. LIMITED WARRANTY

a. Warranty. Rocket warrants to Subscriber that Application functionality of Subscription Service will perform substantially according to Rocket’s current published technical specifications when used according to the Documentation, and Rocket will provide Subscription Service in a commercially reasonable manner consistent with general industry standards that apply to similar subscription services (“Warranty”).

b. Remedy. Subscriber must submit a support request to Rocket according to Section 2(j) above for a Warranty claim promptly upon the occurrence of the problem, and Rocket will provide support service as specified.

c. DISCLAIMER. EXCEPT AS SET FORTH IN SECTIONS 8(a) AND (b) ABOVE, ROCKET, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES,  EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR SUBSCRIPTION SERVICE, DOCUMENTATION AND CLIENT SOFTWARE, THEIR USE, SUFFICIENCY, SECURITY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, (i) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR (ii) THAT SUBSCRIPTION SERVICE OR CLIENT SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (iii) STORED DATA WILL BE ACCURATE OR RELIABLE; (iv) THE INFORMATION, RESULTS OR MATERIAL OBTAINED BY SUBSCRIBER OR END USER THROUGH SUBSCRIPTION SERVICE WILL MEET SUBSCRIBER’S OR END USER’S REQUIREMENTS OR EXPECTATIONS; (v) ERRORS OR DEFECTS WILL BE CORRECTED; OR (vi) SUBSCRIPTION SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OTHER THAN AS SPECIFIED IN SECTION 8(a) ABOVE, ROCKET PROVIDES SUBSCRIPTION SERVICE, CLIENT SOFTWARE, DOCUMENTATION, AND ALL CONTENT TO SUBSCRIBER AND END USER STRICTLY ON AN “AS IS”, “AS AVAILABLE” BASIS. SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ROCKET IS NOT RESPONSIBLE FOR RESULTING DELAYS, DELIVERY FAILURE, OR DAMAGES. THIS SECTION 8 AND SECTION 7(c) SPECIFY ROCKET’S SOLE LIABILITY AND SUBSCRIBER’S AND END USER’S EXCLUSIVE REMEDY FOR A SUBSCRIPTION SERVICE, CLIENT SOFTWARE OR DOCUMENTATION WARRANTY CLAIM.

9. LIMITATION OF LIABILITY

a. ROCKET, ITS AFFILIATES AND LICENSORS (“ROCKET”) ARE NOT LIABLE FOR: (i) INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES; (ii) DAMAGES FOR, WITHOUT LIMITATION, INTERRUPTION OF BUSINESS OR OPERATIONS, COST OF COVER, TOLL FRAUD, LOST  PROFITS, DATA, GOODWILL, BUSINESS OR REVENUE; OR (iii) A CLAIM BROUGHT MORE THAN 12 MONTHS AFTER THE EVENT GIVING RISE TO THE CLAIM. 

b. ROCKET IS LIABLE FOR A CLAIM OR DAMAGES, DIRECT OR INDIRECT, FOR BREACH OF CONFIDENTIALITY ONLY AS A DIRECT RESULT OF ROCKET’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION, AND SUBJECT TO THE LIMITATIONS OF SECTIONS 9(a) AND (c)

c. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, EXCEPT FOR A CLAIM FOR INTELLECTUAL PROPERTY INFRINGEMENT UNDER SECTION 11, DEATH, BODILY INJURY, TANGIBLE PROPERTY DAMAGE, OR WILLFUL MISCONDUCT, ROCKET’S AGGREGATE LIABILITY FOR ANY CLAIM OR DAMAGES FOR ANY REASON, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, WARRANTY, BREACH OF CONTRACT, TORT, MISREPRESENTATION OR NEGLIGENCE, FOR USE OR PERFORMANCE OF SUBSCRIPTION SERVICE, CLIENT SOFTWARE OR OTHERWISE, WHETHER FORESEEABLE OR NOT, OR WHETHER A REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE, IS LIMITED TO ACTUAL, DIRECT DAMAGES NOT EXCEEDING THE AMOUNT SUBSCRIBER PAID FOR THE PRIOR 12 MONTHS FOR THE SPECIFIC SUBSCRIPTION SERVICE GIVING RISE TO THE CLAIM.  ROCKET’S FAILURE TO EXERCISE A RIGHT OR REMEDY IS NOT A WAIVER. THIS SECTION 9 SPECIFIES ROCKET’S SOLE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY FOR A CLAIM BROUGHT AGAINST ROCKET.

10. INTELLECTUAL PROPERTY OWNERSHIP 

Rocket, its affiliates or licensors own and retain all right, title and interest in all Intellectual Property in Subscription Service, Client Software, Documentation and all derivative works. Rocket reserves the right to enforce all its rights and remedies to protect its Intellectual Property.

11. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

a. By Rocket. 

(i) Rocket will defend, at its expense, a third party legal action, suit or proceeding against Subscriber (“Claim”) to the extent that Subscription Service as delivered by Rocket to Subscriber (“Indemnified Service”) directly infringes a valid U.S. patent or copyright. Rocket will indemnify Subscriber for any judgment finally awarded against Subscriber or settlement agreed by Rocket for such Claim to the extent of the Indemnified Service’s infringement, provided (1) Subscriber notifies Rocket promptly in writing of the Claim, (2) Rocket has sole control over the defense or settlement, and (3) Subscriber fully cooperates with Rocket, providing all documents and information in Subscriber’s possession relevant to the Claim, and Subscriber makes personnel available to testify or consult with Rocket as reasonably needed.

(ii) If Indemnified Service becomes, or in Rocket’s opinion is likely to become, subject to a Claim, Rocket may, at its option and expense, (1) acquire the right for Subscriber to continue using the Indemnified Service, (2) replace or modify the Indemnified Service or create a workaround so that the Indemnified Service is functionally equivalent and non-infringing, or (3) terminate the Subscription for the Indemnified Service and give Subscriber a pro rata refund of Fees prepaid for the remainder of the Subscription Term for the infringing part of the Indemnified Service.

(iii) Rocket is not obligated or liable for a Claim due to (1) use of Indemnified Service not according to the Agreement and Documentation, (2) modification of Indemnified Service by anyone other than Rocket, or modification made by Rocket for non-standard features or functionality for Subscriber or according to Subscriber’s directions, (3) any service, equipment, software, or data not supplied by Rocket or use of Indemnified Service combined with any other service, equipment, software, or data not supplied by Rocket if infringement would not occur without the combination, (4) a version of Indemnified Service other than the most current version available or Subscriber’s failure to install a revision, update or release of Client Software that would have eliminated the infringement, (5) Subscriber’s designs, instructions, plans or specifications, or (6) use of Indemnified Service combined with a Subscriber or third party use, process or method if infringement would not occur without the combination.  

b. By Subscriber or End User.

(i) Subscriber will defend, at its expense, a third party claim against Rocket (1) that any product, information, data or material provided by Subscriber or End User, or Subscriber’s or End User’s use of Subscription Service, violates the law or infringes another party’s Intellectual Property rights, other than a Claim for which for which Rocket is responsible according to Section 11(a) above, or (2) arising from Subscriber’s or End User’s failure to comply with the terms of the Agreement.

(ii) Subscriber will indemnify Rocket for any damages for or amounts agreed as settlement of a claim hereunder, provided (1) Rocket notifies Subscriber promptly in writing of the claim, (2) Subscriber has sole control over the defense or settlement, and (3) Rocket cooperates with Subscriber, providing all documents and information in Rocket’s possession relevant to the claim, and Rocket makes personnel available to testify or consult with Subscriber as reasonably needed.

c. Assumption of Defense. If a party fails to defend or settle a claim according to this Section 11 in a timely manner, the other party may assume defense of the claim at the indemnifying party’s expense, and the indemnifying party will reasonably cooperate. Neither party may make an admission of fault on behalf of the other party without written consent, or agree to the settlement of a claim binding the other party that does not contain a full release of liability for the other party, without written consent.

d. Limitation. THIS SECTION 11 SPECIFIES EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR AN INFRINGEMENT OR MISAPPROPRIATION CLAIM.

12. CONFIDENTIALITY

a. Confidential Information. Whether or not disclosed orally or marked as confidential, Confidential Information includes the Agreement, Order Forms, Subscription Service, non-public data, Personal Data, Intellectual Property, and Rocket’s proposals, specifications, manuals, product or Application roadmaps, financial data, pricing, and benchmark test results. Confidential Information does not include information that is: (i) publicly available without breach of the Agreement; (ii) reasonably shown to disclosing party’s satisfaction by objective data to have been known by receiving party prior to disclosure or independently developed by receiving party subsequent to disclosure without breach of the Agreement; or (iii) obtained by receiving party from a third party that is not under confidentiality obligation to disclosing party for the information. Receiving party will promptly notify disclosing party if it is compelled by law or a court to disclose Confidential Information and take reasonable actions requested to maintain its confidentiality.

b. Non-disclosure. Subscriber and End User will use best efforts to prevent disclosing personally identifiable information or Personal Data to Rocket. Receiving party will use disclosing party's Confidential Information solely to perform its obligations under the Agreement. Receiving party will take commercially reasonable actions to safeguard disclosing party's Confidential Information, no less than the actions taken to protect its own Confidential Information. Receiving party must not disclose disclosing party's Confidential Information except to its employees bound by confidentiality obligations no less restrictive than these terms. Receiving party must promptly notify disclosing party in writing of unauthorized use or disclosure of Confidential Information. Receiving party, at its expense, must take all reasonable actions to recover Confidential Information and prevent further unauthorized use or disclosure, including seizure and injunctive relief. If receiving party fails to timely do so, disclosing party may take any reasonable action to do so at receiving party's expense, and receiving party will reasonably cooperate.

13.  DATA PROTECTION

a. Applicability. This Clause 13 applies to Subscribers and End Users who are processing Personal Data either: (i) in the context of the activities of an establishment within the European Union; or (ii) where the processing activities are related to either the offering of goods or services to data subjects in the European Union or the monitoring of any behaviour which takes place in the European Union.

b. Definitions. For the purpose of this Clause 13, "Data Protection Laws" means all applicable data protection law including, from 25 May 2018, Regulation (EU) 2016/679, and any other laws or regulations (as amended and/or replaced from time to time).  The terms "Personal Data", " Processor", "Data Subject", "processing", and "Controller" are as defined in the Data Protection Laws.

c. Operative Provisions.

(i) Rocket will implement appropriate technical and organisational measures to protect Personal Data processed in connection with this Agreement in accordance with Data Protection Laws. The details of the Personal Data and its processing are set out in Schedule A. Rocket will not process Personal Data except as necessary for the purposes of this Agreement and only in accordance with Subscriber's or End User’s written instructions. Rocket will immediately notify the Subscriber or End User if, in Rocket's opinion, any instruction or direction from the Subscriber or End User infringes Data Protection Laws. Following this notification, Rocket will continue processing according to such direction or instruction except to the extent the Subscriber or End User withdraws or amends such direction or instruction. In the absence of such a written withdrawal or amendment of the direction or instruction, Subscriber and End User agree to indemnify Rocket on demand against all losses that Rocket may suffer as a consequence of continuing such processing, including without limitation losses arising from regulatory action or from claims made by data subjects. At Subscriber's or End User’s request, Rocket will provide support requested by the Subscriber in fulfilling its obligations subject to reimbursement of reasonable costs incurred.

(ii) Subscriber and End User hereby provide a general authorisation for Rocket to subcontract the processing of any Personal Data. Subscriber and End User consent to Rocket engaging corporate affiliates and third party subcontractors to process personal data provided that Rocket: (1) provides Subscriber or End User at least 14 days' prior notice of the addition of any subcontractor and Subscriber or End User has not objected within 14 days of such prior notice to the addition of subcontractor (and, in the event that Subscriber or End User objects to the addition of such sub-contractor on reasonable grounds relating to data protection then either Rocket will not appoint the subcontractor or Subscriber or End User may elect to suspend or terminate those order forms with respect to the  Subscription Service which cannot be provided by Rocket other than by use of such subcontractor; and (2) imposes data protection terms on any subcontractor and corporate affiliate it appoints which are substantially similar to the terms of this Clause 13.

(iii) A list of Rocket's current subcontractors is available at http://www.rocketsoftware.com/third-party-sub-processors.

(iv) Rocket will be and remains fully liable for the processing acts, errors or omissions of any of its subcontractors or corporate affiliates who are processing personal data as if Rocket had performed such act, error omission itself.

(v) Rocket will promptly notify Subscriber or End User of any actual or suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data. Rocket will provide reasonable cooperation with any investigation regarding the breach and take all necessary measures to limit further unauthorised disclosure of or unauthorised processing of Personal Data subject to reimbursement of reasonable costs incurred.

(vi) Upon request and no more than one time in any twelve (12) month period, Rocket will make information available to Subscriber and End User to demonstrate its compliance with this Clause and will permit and assist with audits conducted by Subscriber and End User or a third party to assess Rocket's compliance with this Clause 13. Except as provided otherwise by law, upon termination of this Agreement, Rocket will, at Subscriber's or End User’s option, immediately delete or return all Personal Data.

(vii) Personal Data will only be transferred outside the European Economic Area where Rocket puts in place appropriate safeguards for the protection of the Personal Data, or where permitted by Data Protection Laws.

d. Privacy Notice. Rocket will provide the Subscription Services in accordance with its privacy notice as amended from time to time, a copy of which can be found at http://www.rocketsoftware.com/company/legal/saas-privacy-policy or at such other URL as Rocket may notify to the Subscriber and End User.

14. MISCELLANEOUS  

a. Agreement. Each Order Form together with these terms creates a separate contract (“Subscription Agreement”), is the entire agreement governing Subscriber’s purchase and use of Subscription Service, and supersedes all other oral or written terms, proposals or representations regarding the subject matter of the Order Form, provided however, if Subscriber has executed a master purchasing agreement with Rocket for Subscription Services, such agreement will control to the extent it is inconsistent with these Terms. These Terms can only be modified by written amendment signed by both parties. Inconsistent terms of Subscriber’s purchase order are excluded regardless of Rocket accepting the purchase order for payment purposes. If any Subscription Agreement term is illegal, invalid, or unenforceable, the other terms remain in full force and effect and any term that is intended to survive the Subscriber Agreement termination will survive.

b. Assignment. Subscriber may not assign the Subscription Agreement, an Order Form, and Subscriber or End User may not assign its obligations, rights or remedies, in whole or in part, without Rocket’s prior written approval, in its sole discretion.

c. Force Majeure. Neither party is liable for delay or failing to perform its obligations due to a cause beyond its reasonable control and without fault or negligence, except Subscriber’s timely payment obligation.

d. Governing Law. Massachusetts laws govern the Subscription Agreement, the parties’ performance, rights and obligations, excluding conflicts of law principles that would apply the law of another jurisdiction. Each party waives the right to jury trial for a claim in law or equity. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act, as adopted, do not apply.

e. Complying with Laws; Export. Subscriber and End User will comply with U.S., foreign, and international laws and regulations including, without limitation, U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and Treasury Department's Office of Foreign Assets Control regulations, and other anti-boycott, export and import regulations.  Subscriber and End User agree: (i) the export, re-export, transfer, re-transfer, sale, supply, access to, or use of Subscription Service to or in a country other than the country in which Subscription Service is provided to Subscriber or End User, or to, by, or for a different end user or end use, may require a U.S. or other government license or authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of Subscription Service to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end use under U.S. or other law (collectively, “Prohibited Use“). Subscriber is responsible for screening for Prohibited Use and obtaining required license or authorization and will indemnify Rocket for Subscriber’s or End User’s violation of export control and economic sanction laws and regulations.  Rocket may terminate the Subscriber Agreement and Subscription Service immediately if Rocket determines, in its sole discretion, that Subscriber or End User has breached, intends to breach, or insists upon breaching these terms.

f. Language. The parties agree that the Agreement and all related documents are in English.

g. No Agency. Each party is an independent contractor and may not commit the other party without written authorization. The Subscription Agreement does not create an employment, joint venture, partner, or agency relationship.

h. Non-Solicitation. For the Agreement term and 1 year after the termination date, without Rocket’s written consent, Subscriber or End User will not, directly or indirectly, hire or solicit any Rocket employee, former employee, or contractor (except as a result of a generally advertised recruiting solicitation), or attempt to or interfere with Rocket’s business.

i. Notice. Notice and consent must be in writing signed by a party’s authorized representative, sent to the address on the Order Form or otherwise specified in writing by a party. Notice must be sent by mail or overnight courier with return receipt, and is effective 1 business day after being sent by overnight courier or 3 business days after being sent by mail.

 

15. DEFINITIONS

a. Business Affiliate means a legal entity which has a business relationship with Subscriber and to which Subscriber provides access to the Subscription Service in order to transact business between Subscriber and Business Affiliate.

b. Application means functionality described in Rocket’s current Documentation for a software product, including modifications, revisions, upgrades, language versions and enhancements.

c. Client Software means a Rocket software component provided to Subscriber to use Subscription Service.

d. Concurrent User means a User authorized to use Subscription Service concurrently with other Concurrent Users, limited by a maximum number of Concurrent Users at any one time.

e. Confidential Information means information, in any form or medium, that is proprietary and confidential to a party and is marked as confidential, or not marked but by its nature or treatment by its owner should reasonably be considered to be confidential.

f. Day means calendar day unless business day is specified.

g. Documentation means Rocket’s current published technical specifications for Applications available as Subscription Service.

h. Fee means Rocket’s prices charged for Subscriptions, data storage and related services specified in an Order Form.

i. Intellectual Property means all intellectual property, including, without limitation, inventions, patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, moral rights, licenses and other intangible proprietary or property rights, registered or not, under statute and/or common law.

j. License means a revocable, non-exclusive, non-transferable, limited right to use Client Software or Deliverables object code for Subscriber’s own internal business operations according to the Documentation.

k. Measured Use means the number and type of Users, transactions, volume of data, or other quantity or measure specified for a Subscription Service specified in an Order Form.

l. Named User means an individual identified User authorized to use Subscription Service.

m. Start Date means the date a Subscription Service is available for Subscriber’s use.

n. Subscriber means the customer which has purchased the Subscription Service from Rocket according to the Order Form.

o. Subscriber Data means proprietary information and data that Subscriber or an End User transmits or processes through Subscription Service.

p. Subscription Service means a Rocket Application and Documentation made available as a service by Subscription, including all related Documentation, revisions and updates that replace or supplement the Subscription Service.

q. Subscription Term means a period beginning on a Start Date during which Rocket will provide Subscription Service to Subscriber.

r. User means a Concurrent User or Named User authorized by Subscriber to use Subscription Service for Subscriber’s internal business purposes.

Schedule A – Data Protection Particulars

1.         Subject-matter of the processing: Limited to the scope necessary for Rocket to provide Software-as-a-Service products to Subscriber and to perform related Services and fulfill its obligations under the Agreement, subject to the following basic processing activities:

• To provide relevant Services to Subscriber under the Agreement
• To identify and contact appropriate representatives in either party’s organization
• To keep accounts of business activities
• Recordkeeping for orders, purchases, sales, and other transactions between the parties
• Information management purposes
• Address inquiries and assist in managing the relationship
• To fulfill legal and business requirements

 

2.         Duration of the processing: For the term of the Agreement. Data will be stored no longer than necessary or appropriate for the purposes for which it has been provided, or as otherwise required by law.

3.         Nature and purpose of the processing: We may require information which identifies a user as an individual), such as name, email address and phone number, in order to transact business with a user, on behalf of the company they work for, as our Subscriber, and to enable them to use the SaaS Products.

We may collect the following information, depending on the SaaS application being used:

• Name: first name and last name
• Job title or description
• Company or organization name
• Company address, including country
• Contact information including email address and telephone number(s)
• User names (account alias) and passwords according to the SaaS product specifications to allow users to login and use the SaaS product
• ENGDAT (Engineering Data Message) routing address for OFTP (Odette File Transfer Protocol) based file exchanges
• ime zone and date/time preferences for SaaS product usage
• IT information required to provide access to systems and networks such as IP addresses, log files and login information, encryption generation keys
• Information pertinent to fulfilling business transactions on a customer’s behalf, such as files uploaded by a user to a SaaS product to be processed by the application’s functionality, system generated emails
• Meta Data, such as logs, for usage information and activity logs, with identifying characteristics such as creator or author of a transaction, names of individuals who have accessed or downloaded file(s), the time file(s) were accessed or downloaded, IP addresses of users.
• SaaS product administration activity such as adding and deactivating users, management of the generation of encryption keys 

4.         Special categories of data (if relevant): We do not collect sensitive information such as racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, or data concerning health or sexual orientation.

5.         Categories of data subjects: Individual persons generally engaged by an organization with which Subscriber has a business relationship, or with whom Subscriber engages directly, such as: Subscriber’s employees, contractors, business partners, suppliers, and their employees, contractors and authorized users of the SaaS solutions, Community members, (who are natural persons) and are authorized by Subscriber to use SaaS Services, or the personal data of whom Subscriber provides to Rocket in using the Services for Subscriber’s business operations (as applicable in the circumstances).