Onaroll Software Services Terms and Conditions (“Terms”)
If you have any questions
contact us herePLEASE READ THIS AGREEMENT (AS DEFINED BELOW) CAREFULLY BECAUSE IT IS AN ENFORCEABLE CONTRACT BETWEEN YOU AND ONAROLL. BY PROVIDING YOUR ELECTRONIC CONSENT VIA AN ONAROLL ORDER FORM, OR BY ACCESSING OR OTHERWISE UTILIZING THE SERVICE (AS DEFINED BELOW), YOU HEREBY AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
SUBJECT TO THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, Onaroll Inc. (“Onaroll”) will provide the entity which indicates its acceptance of the Onaroll Order Form (such entity, “you” or “Client”; you and Onaroll, each a “Party” and collectively the “Parties”) with access to its subscription-based software-as-a-service (SaaS) gamified employee incentivization application (the “Service”).
Client’s Onaroll Order Form(s), the most current version of these Terms, any Onaroll invoice(s) sent to Client, the most current version of Onaroll’s Terms of Use (available here), and the most current version of Onaroll’s Privacy Policy (available here) constitute the entire binding agreement (collectively, “Agreement”) by and between Client and Onaroll relating to Client’s subscription to and use of the Service. This Agreement supersedes all other agreements and understandings, whether written or oral, between the Parties relating to the Service. Notwithstanding anything to the contrary, whether executing a purchase order, quotation, proposal, or letter of authorization, or by utilizing the Service, Client agrees to be bound by this Agreement. No additions, conditions, or modifications by Client or any other person, whether oral or contained in any other documents submitted from Client to Onaroll, will be binding on Onaroll, regardless of Onaroll’s failure to object or Onaroll’s provision of the Service, unless otherwise agreed to in writing and signed by an authorized representative of Onaroll. Pursuant to Section 10.10 hereof, these Terms may be updated or amended from time to time by Onaroll without notice to Client; a copy of such updated terms will be available for Client’s review here. Client agrees to be bound by the most recent Terms as part of its Agreement. THIS AGREEMENT WILL APPLY UNLESS CLIENT HAS A SEPARATE WRITTEN AGREEMENT WITH ONAROLL THAT EXPRESSLY REPLACES THIS AGREEMENT.
“Agreement” means, collectively, and to the exclusion of all other terms, Client’s Onaroll Order Form(s), the most current version of these Terms, any Onaroll invoice(s) sent to Client, the most current version of Onaroll’s Terms of Use (available here), and the most current version of Onaroll’s Privacy Policy (available here).
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Authorized Users” means your Team Members that are authorized to access and use the Service.
“Confidential Information” means all information, material and data (i) labeled or designated in writing as confidential or proprietary, (ii) which is verbal or otherwise intangible and the disclosing Party advises the receiving Party in writing after disclosure as proprietary or confidential or (iii) which, in view of the nature of such information and/or the circumstances of its disclosure the receiving Party knows or reasonably should know is confidential or proprietary, including, but not limited to, software, information relating to financial data, plans, forecasts, intellectual property, methodologies, algorithms, agreements, market intelligence, technical concepts, customer information, strategic analyses and internal developments.
“Data” means the electronic data or information submitted by Authorized Users to the Service, which may include Personal Data.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, hot fixes, changes, release notes, upgrades and changes to the Service and this Agreement, as developed by Onaroll and made generally available for use without a separate charge to you.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and including Improvements to any of the foregoing, and all moral rights related thereto.
“Location” means a distinct physical location (or “rooftop”) owned, operated, and/or managed by Client, which location employs or engages Authorized Users.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
“Order Form” means the Onaroll order form signed by you which sets forth your specific Location numbers, pricing, Term, and other Service details.
“Personal Data” means any information that is related to an identified or identifiable individual and has been provided by you or your Affiliates, or by the Authorized Users, within the Service.
“Team Member” means those under your employment and/or engaged in contract work with you.
“Subscription Fees” means all amounts invoiced and payable by you for the Service as set forth herein (including in the applicable Order Form).
“Term” means the specific length which you have contractually committed to purchasing the Service, as set forth in your Order Form, and as further described in Section 9.1 hereof.
“Third-Party Applications” means applications licensed from third parties which connect with or interoperate with the Service.
2.1 Onaroll Obligations. During the Term of this Agreement, Onaroll shall: (i) make reasonable commercial efforts to make the Service available to Authorized Users in accordance with this Agreement; (ii) not use Data except to provide the Service to Authorized Users, to provide you with data and/or metrics on Authorized User utilization of the Service, to prevent or address service or technical problems, to verify Improvements to the Service, and otherwise as expressly in accordance with this Agreement; (iii) not disclose Data to anyone other than you or Authorized Users, or otherwise as expressly in accordance with this Agreement; and (iv) in Onaroll’s initial contact with each Authorized User, state that such Authorized User’s use of the Service is entirely voluntary and not required by you in connection with such Authorized User’s employment. Onaroll reserves the right to deny access to the Service to anyone at any time in the event that Onaroll, in good faith, believes it is necessary for purposes of ensuring your compliance with this Agreement or to protect the rights, property, and/or interests of Onaroll, its Affiliates, service providers, licensors, and/or other customers.
2.2 Your Obligations. You may enable access to the Service for use only by Authorized Users solely for your, and your Affiliates’, internal business purposes in accordance with the terms of this Agreement - not for the benefit of any third parties. You are responsible for all Authorized Users’ use of the Service and compliance with this Agreement. You shall: (a) have sole responsibility for the accuracy, quality, and legality of all Data; (b) be responsible for all electronic communications, including those containing business information, account registration, financial information, Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service; (c) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, notify Onaroll promptly of any such unauthorized access or use, and cooperate with and assist Onaroll in identifying and preventing any unauthorized use, copying, or disclosure of the Service or any portion of the Service; and (d) maintain the confidentiality of all Authorized Users’ Data that is not publicly available, not using such information in any manner other than in connection with the Service hereunder and not disclosing such information publicly or to any third party without the express agreement of the applicable Team Member.
You shall not: (i) use the Service in violation of any applicable laws or regulations or in any manner that is likely to harm Onaroll, its Affiliates, service providers, licensors, suppliers, and/or customers; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) interfere with or disrupt performance of the Service or the related data; (v) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service; (vi) modify, translate, or create derivative works based on the Service (except to the extent expressly permitted by Onaroll or authorized within the Service); (vii) breach or attempt to breach the security of the Service, or access or attempt to access data belonging to third parties; or (vii) access or attempt to gain access to the Service or its related systems or networks in a manner not set forth in this Agreement. You shall be liable for the acts and omissions of all of your Affiliates and your and their Authorized Users relating to this Agreement.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without Client’s knowledge or consent.
You shall be responsible for ensuring that all Authorized Users promptly download and install all available updates for the Service if and as required by Onaroll. You hereby acknowledge that the Service may not properly operate should any Authorized User fail use the most up-to-date version of the Service, and that Onaroll is not liable for any damages caused by a failure to update accordingly.
2.3 Subscription Fees. (a) In consideration for your access to the Service you hereby agree to pay to Onaroll the one-time implementation fee set forth on your Order Form on the payment timeline set forth in your Order Form. Additionally, in consideration for such access you hereby agree to pay to Onaroll, on or before the tenth (10th) day of each calendar month during the Term: (i) the monthly Location-based Subscription Fees set forth in your Order Form, plus (ii) the sum of all “Cost of Perk” Redemptions from Authorized Users in a billing period, inclusive of a 8.75% processing fee on such redemptions, plus (iii) any other fees specified on your Order Form. If you provide Onaroll with a credit card or other form of payment for automatic monthly payment of your Subscription Fees, you hereby authorize Onaroll to automatically charge your Subscription Fees to such form of payment (which authorization shall be considered valid for each and every month during the Term with respect to the Location-based monthly Subscription Fees).
(b) The terms of this Section 2.3(b) apply to you instead of Section 2.3(a) only if you have an earlier version Order Form with Onaroll in which pricing is based on Team Member count instead of Location count:
(I.) In consideration for your access to the Service you hereby agree to pay to Onaroll the one-time implementation fee set forth on your Order Form on the payment timeline set forth in your Order Form. Additionally, in consideration for such access you hereby agree to pay to Onaroll, on or before the tenth (10th) day of each calendar month during the Term: (i) the per-Authorized User fee set forth on the Order Form, which fee is based on all Team Members listed in your roster in the applicable billing period, plus (ii) the sum of all “Cost of Perk” Redemptions from Authorized Users in a billing period, inclusive of a 8.75% processing fee on those redemptions. If you provide Onaroll with a credit card or other form of payment for automatic monthly payment of your Subscription Fees, you hereby authorize Onaroll to automatically charge your Subscription Fees to such form of payment each and every month during the Term.
(II.) You hereby agree to provide Onaroll with current, accurate, and timely reports of your total Team Member count each month so that Onaroll may accurately calculate the monthly per-Authorized User fee pursuant to Section 2.3(b)(I). For any month during the Term in which you fail to provide Onaroll with such a report, Onaroll may in its sole discretion increase the per-Authorized User fee due and payable by up to thirty percent (30.0%) over and above the immediately preceding month in order to account for potential Team Member increases. For any month in which Onaroll determines that your report is inaccurate (e.g., underreporting Team Members), Onaroll may in its sole discretion increase the per-Authorized User fee due and payable in subsequent months in order to offset such inaccuracies. In all cases: (i) such increases shall be permanent for the remainder of the applicable Term; and (ii) you hereby authorize Onaroll to automatically charge such increased Subscription Fees to your payment method on file going forward during the Term.
(III.) In no event will your monthly per-Authorized User fee be based on less than seventy-five (75%) of the “Estimated Team Member” count you provided on your Order Form, regardless of actual future monthly Team Member headcount, unless otherwise preapproved in writing by Onaroll.
2.4 Late Payment. Any amounts owed by you to Onaroll that are not paid when due shall thereafter accrue interest at a rate equal to the lesser of 12% per annum or the highest amount permitted under applicable law. Such interest will be calculated based upon the number of days elapsed and a 365-day year. All overdue unpaid amounts received will be allocated first towards any accrued interest on past due amounts, and second to the amounts owed. Client will be liable to Onaroll for all costs incurred by Onaroll in its collection of any amounts owing by Client which are not paid when due, including collection agencies’ and attorneys’ fees and expenses, regardless of whether a lawsuit is commenced. All overdue payments to Onaroll shall be sent to the address provided for in Section 10.2 below or such other address as Onaroll shall specify in writing.
2.5 Monitoring Use Reporting. Onaroll reserves the right to gather data on usage of the Service to ensure that the Service is being used in accordance with the terms of this Agreement and the type of Service licensed by you. The Service monitors user counts, transaction volumes, resource level utilization, server IP addresses, and other information. Onaroll may share Data and/or data on usage of the Service with you, but this information will not be made public. In the event (a) transaction volumes or resource level utilization of your database exceeds, for any three (3) months during any trailing twelve (12) month period, the transaction volumes or capacity, respectively, licensed by you, or (b) any other unauthorized use of the Service is discovered, it shall be considered a material breach of this Agreement. You agree not to block, electronically or otherwise, the transmission of data required for the monitoring of compliance with this Agreement. In addition to any other remedies available to Onaroll hereunder, any blocking of data required for compliance may result in immediate termination of this Agreement.
3.1 Onaroll IP. As between you and Onaroll, Onaroll shall own and retain all right, title and interest in and to: (a) the Service and all Improvements thereto; (b) any software, applications, inventions or other technology developed in connection with the Service or support provided therefor; (c) the Onaroll Data and any Unsolicited Information provided by you (as each term is defined below); and (d) all Intellectual Property Rights related to any of the foregoing (collectively, the “Onaroll IP”). Should a determination ever be made that any of the Onaroll IP is not the sole property of Onaroll, Client shall assign all rights to the Onaroll IP, including copyright rights and moral rights, to Onaroll, and shall execute any documents as may be necessary to effect this assignment. No rights are granted to you other than as expressly set forth in this Agreement.
3.2 Onaroll IP. You hereby represent, warrant, and covenant that you own or otherwise have all necessary, title and interest in and to all Data provided to Onaroll. You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Data (including, but not limited to, the legality of your transferring and disclosure of such Data to Onaroll). You hereby grant Onaroll and its Affiliates and each of their applicable contractors a worldwide, fully paid-up, royalty-free, sublicensable, limited-term license to host, copy, store, record, transmit, display, view or otherwise use Data as reasonably necessary for Onaroll to provide the Service, including, but not limited to, the offering of any associated awards in accordance with the Service. Subject to the limited licenses granted in this Agreement, Onaroll acquires no right, title or interest from you under this Agreement in or to any Data provided by you to Onaroll.
3.3 Personal Data. Onaroll secures your Personal Data using industry-standard physical, procedural, and technical measures designed to prevent unauthorized or unlawful access, disclosure, or destruction of such Personal Data. Please read Onaroll’s above-linked Privacy Policy for more information regarding how Onaroll uses and protects your Personal Data.
3.4 Unsolicited Information. From time to time, you may send us unsolicited information or materials, including, without limitation, ideas or suggestions related to new or improved products, services, enhancements, names, technologies, advertising and marketing campaigns, plans or promotions (collectively, “Unsolicited Information”). You acknowledge and that you have no obligation to provide Unsolicited Information to Onaroll, and you hereby agree never to send to Onaroll any information, material, or content that would violate or infringe any Intellectual Property Rights or other rights of third parties, including, without limitation, the rights of publicity or privacy. By sending Onaroll any Unsolicited Information you hereby grant to Onaroll and its Affiliates an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute such Unsolicited Information, and you also agree that Onaroll is free to use any ideas, concepts, know-how or techniques that you send to it for any purpose, without attribution or compensation to you of any kind. Notwithstanding the foregoing, Onaroll has no obligation to review any Unsolicited Information.
3.5 Aggregated Statistical Information. Onaroll owns all aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, reports processed in the Service, and the performance results for Authorized Users (the “Onaroll Data”). Nothing in this Agreement shall be construed as prohibiting Onaroll from utilizing the Onaroll Data for purposes of providing or improving the Service, benchmarking the Service performance, preparing statistics and system metrics, and marketing; provided, however, that Onaroll’s use of Onaroll Data will not reveal the identity of an Authorized User, or any Authorized User’s Personal Data, to you or any third party, except as expressly set forth in this Agreement.
4.1 Confidential Information. The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other Party (any such information, the “Confidential Information”). Confidential Information of Onaroll includes, but is not limited to, non-public information relating to the features, functionality, and performance of the Service. The receiving Party may only use the disclosing Party’s Confidential Information to fulfil the purposes of this Agreement and in accordance with the terms of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This Section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof.
4.2. Exceptions. Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
5.1 Service Limited Warranty. Onaroll warrants that the performance and functionality of the Service shall, in all material respects, meet the specifications set forth in this Agreement. Onaroll does not warrant that the Service will be error-free and does not warrant the accuracy of any Data provided by the Authorized Users.
5.2 Performance Limited Warranty. Onaroll shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Onaroll or by third-party providers, or because of other causes beyond Onaroll’s reasonable control, but Onaroll shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
5.3 Exclusive Remedy. Your sole and exclusive remedy for Onaroll’s breach of these limited warranties shall be that Onaroll shall use commercially reasonable efforts to modify the Service to meet the performance and functionality specifications, in all material respects, described in this Agreement, and if Onaroll is unable to restore such performance and functionality, you shall be entitled to terminate this Agreement and shall be entitled to receive a pro-rata refund of the Subscription Fees paid for under this Agreement for your use of the Service for the terminated portion of the Term. Onaroll shall have no obligation with respect to a warranty claim (i) unless notified of such claim within thirty (30) days of the first instance of any material performance and/or functionality issue, (ii) if you fail to upgrade to a supported version of the Service, or (iii) if the warranty claim is the result of a Third-Party Application or a customization of the Service prepared by you or a third party. Any notice required to be sent pursuant to this Section 5.3 must be sent pursuant to Section 10.2.
5.4 Disclaimer. ONAROLL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ONAROLL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
6.1 Limitation on Damages. ONAROLL SHALL HAVE NO LIABILITY TO CLIENT, ITS AFFILIATES, OR ITS TEAM MEMBERS, OR TO ANY OTHER THIRD PARTY, FOR ANY DAMAGES, INCLUDING DAMAGES RESULTING OR ALLEGED TO RESULT FROM ANY DEFECT, ERROR, OR OMISSION IN THE SERVICE, OR AS A RESULT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. UNDER NO CIRCUMSTANCES WILL ONAROLL HAVE ANY LIABILITY TO CLIENT FOR, AND CLIENT HEREBY EXPRESSLY WAIVES, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY DESCRIPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF WARRANTY OR CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION, AND RELIANCE DAMAGES. CLIENT AGREES THAT UNDER NO CIRCUMSTANCES WILL ONAROLL’S LIABILITY UNDER THIS AGREEMENT FOR ANY CAUSE EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY CLIENT TO ONAROLL IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
6.2 Application of Limitations. All limitations on liability, damages and claims are intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
6.3 Essential Basis of the Bargain. Client acknowledges that Onaroll has set its Subscription Fees and entered into the Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties, and Client’s indemnity obligations set forth herein, that the same form an essential basis of the bargain between the Parties, and THAT THE CONSIDERATION WOULD BE HIGHER IF ONAROLL WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN.
7.1 By Onaroll. Onaroll will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Service infringes its Intellectual Property Rights; provided (i) you notify Onaroll, in writing, not later than twenty (20) days after you receive notice of the claim, (ii) you give Onaroll sole control of the defense and any settlement negotiations, and (iii) you cooperate with Onaroll in defending against or settling the claim. Onaroll’s obligation of indemnification will not apply to the extent that the claim is based on (a) your and/or your Affiliates’ use of the Service after Onaroll notifies you to discontinue use due to such a claim, (b) your combining the Service with non-Onaroll service, product, data or business process including third-party add-ons or programs, (c) damages attributable to the value of the use of a non-Onaroll service, product, data or business process, or (d) your use of the Service in violation of this Agreement. You will reimburse Onaroll for any costs or damages that result from these actions. If Onaroll receives information concerning an infringement or misappropriation claim related to the Service, Onaroll may, at its expense, but without obligation to do so, either (y) procure for you the right to continue to use the Service, or (z) modify the Service with a functional equivalent to make it non-infringing. If, as a result of an infringement or misappropriation claim, your use of the Service is enjoined by a court of competent jurisdiction, Onaroll will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the Subscription Fees paid and terminate this Agreement. This Section 7.1 constitutes your exclusive remedy for third-party infringement and trade secret misappropriation claims.
7.2 By You. You shall indemnify, defend and hold harmless Onaroll from and against any and all claims, proceedings, damages, liability and costs (including reasonable attorneys’ fees) incurred by Onaroll in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this Agreement, and (ii) your or your Affiliates’ use of the Service, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. Onaroll reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Onaroll.
8.1 No Warranty of Third-Party Applications. Onaroll does not warrant any Third-Party Application, regardless of from whom you may purchase or license such application. Any agreement for use by you of a Third-Party Application is solely between you and the applicable third-party provider. You may not use a Third-Party Application to enter and/or submit transactions to be processed and/or stored in the Service, unless you have procured the applicable license or subscription to do so.
8.2 No Obligation as to Third-Party Application. Onaroll is not responsible for any aspect of a Third-Party Application that you may purchase, license, subscribe to or connect to through the Service, or any interoperation or other information related to the foregoing. If you install or enable a Third-Party Application for use with Service, you agree that Onaroll may enable such third-party provider to access Data for the interoperation of such Third-Party Application with the Service. Onaroll is not responsible for any exchange of data or other interaction between you and a third-party provider of the Third-Party Application. Any such exchange or interaction is solely between you and such third-party provider and is subject to a separate privacy policy or other terms governing your access to or use of the Third-Party Application. Onaroll shall not be responsible for any disclosure, modification, corruption or deletion of Data resulting from any such access by a Third-Party Application for third party providers.
9.1 Term and Auto-renewal; Notice of Your Election Not to Renew. Onaroll offers Service terms of varying lengths. Your Term will be the Term you selected on your Order Form. While your Agreement will be effective on the date of your acceptance of the Order Form, Term will only begin once you go live with the Service. In other words, you will not be charged for the onboarding time prior to your go-live date. For illustration purposes, if you signed a 24-month Order Form on January 1, and onboarding is completed on January 20, then the initial Term of your Service shall run from January 20 of Year 1 through January 20 of Year 3.
(c) After your initial Term, this Agreement will automatically renew for additional successive periods equal to your initial Term at the applicable Subscription Fee rate set forth in the Order Form, unless: (i) you execute a superseding Order Form for a Term length, (ii) either Party provides prior written notice to the other Party of their election to not renew this Agreement at least thirty (30) days prior to the expiration date of the then-current Term, or (iii) either Party terminates this Agreement in accordance with the terms hereof.
9.2 Suspension of the Service. Onaroll reserves the right to suspend Authorized Users’ access to and/or use of the Service: (a) if any payment for the Service is due but unpaid but only after Onaroll has provided you with at least 10 days’ prior written notice; (b) if Onaroll reasonably determines that Authorized Users are using the Service to engage in denial of service attacks, spamming, or illegal activity, and/or your use of the Service is causing immediate, material and ongoing harm to Onaroll or others; or (c) if Onaroll reasonably determines that you have breached any of the other terms of this Agreement. Onaroll shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section. Any suspension pursuant to this Section shall not relieve you of your obligation to make payments for the Service.
9.3 Termination. Onaroll may terminate this Agreement at any time for any reason or no reason whatsoever upon thirty (30) days’ prior written notice to Client. Either Party may terminate this Agreement immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Onaroll may terminate this Agreement upon ten (10) days prior written notice to you if you fail to pay the Subscription Fees and do not cure such failure within the ten-day notice period.
9.4 Effect of Termination. Upon any termination of this Agreement, Authorized Users shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the Service and you shall immediately cease accessing and otherwise using any Onaroll Confidential Information. Termination for any reason shall not relieve you of the obligation to pay any Subscription Fees accrued or due and payable prior to the effective date of termination, and termination for any reason other than for uncured material breach by Onaroll shall not relieve you of the obligation to pay all future amounts due, if any.
9.5 Surviving Provisions. The following provisions of this Agreement shall survive the non-renewal or termination of this Agreement: the first three paragraphs hereof, Section 1, Sections 2.2 through 2.5, Sections 3 and 4, Section 5.4, Sections 6 through 10, and all defined terms herein.
10.1 Relationship of the Parties. No provision of this Agreement will be deemed to create a partnership, joint venture, or other combination between Onaroll and Client. Client and Onaroll are independent contractors. Neither Party will make any warranties or representations or assume any obligations on the other Party’s behalf. Neither Party is or will claim to be a legal representative, partner, agent, or employee of the other Party. Each Party is responsible for the direction and compensation, and is liable for the actions of, its own employees and subcontractors. There are no Client third-party beneficiaries to this Agreement. Nothing in this Agreement shall prevent Onaroll from entering into similar agreements with third-parties or from independently developing, using, selling or licensing content, products or services which are similar to those provided pursuant to this Agreement.
10.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to Onaroll shall be addressed to Onaroll, Inc., 767 Fifth Ave 15th Floor, New York, NY 10153, Attn: Peter Ginsberg. Notices to you shall be addressed to your contact provided to Onaroll. Each Party may modify its recipient of notices by providing notice pursuant to this Agreement.
10.3 Force Majeure. Except for your payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Onaroll or your employees, respectively). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.4 Assignment. Client may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Onaroll. Notwithstanding the foregoing, Client may assign this Agreement in its entirety upon written notice to Onaroll in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past-due and accruing Subscription Fees are paid in full. Any attempt by Client to assign its rights or obligations under this Agreement other than as permitted by this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and their permitted assigns.
10.5 Governing Law; Waiver of Jury Trial; Class Action Waiver. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of law rules. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated in the State of New York. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. You and Onaroll agree that the Uniform Computer Information Transactions Act (UCITA) as adopted in any state, in which this Agreement may be performed, shall not apply to this Agreement. Each Party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Where permitted under the applicable law, Client and Onaroll agree that each may bring claims against the other only in each Party’s individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless Client and Onaroll both agree, no action, or court of law, may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. This paragraph shall be deemed stricken in the event that it is illegal or unenforceable under applicable law.
10.6 Injunctive Relief. YYou hereby acknowledge agree that, in the event of a breach of any of the provisions of Sections 3.1 or 4, Onaroll will not have an adequate remedy at law and shall, therefore, be entitled to seek injunctive relief against such breach from any court of competent jurisdiction immediately upon request. Onaroll’s right to obtain injunctive relief shall not limit its right to seek further remedies.
10.7 Open Source. Client acknowledges that Onaroll reserves the right to utilize within the Service software subject to a license certified as Open Source by the Open Source Initiative (https://opensource.org/) or listed as a Free Software license by the Free Software Foundation (https://www.gnu.org/). Any applicable Service will be provided to Client in a manner compliant with the relevant Open Source license(s). Client shall be solely responsible for further and continuing compliance with such Open Source licenses.
10.8 Export. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, you shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
10.9 Consent to Describe Engagement. Onaroll may, without disclosing any Client Confidential Information, describe to prospective and current clients its engagement with Client. Client may at any time provide written notice in accordance with the terms of this Agreement directing Onaroll to stop using Client’s name and/or identifying information in accordance with this Section, provided, however, that Onaroll will have no obligation to retrieve or otherwise collect or destroy any prior materials broadcast, distributed, displayed, exhibited, posted or used which included Client’s name and/or identifying information.
10.10 Modification of Terms. Onaroll reserves the right from time to time to modify the terms under which the Service is provided to its subscribers, including you, and as a result to modify these Terms. If Onaroll makes a material change to any of the terms of this Agreement, then Onaroll will notify you by either sending an email to the notification email address or by mail to the mailing address which has been provided to Onaroll. If the change has a material adverse impact on you and you do not agree to the change, you must so notify Onaroll in writing within thirty (30) days after receiving notice of the change. If you notify Onaroll as set forth in this Section 10.10, then your use of the Service will remain governed by the Agreement as in effect immediately prior to the change until the end of the then current subscription term for the Service. If you allow the Service to renew at the end of the then-current term, it will be renewed under Onaroll’s then-current Terms.
10.11 Severability. IIf any provision of this Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction.
10.12 Miscellaneous. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Client and Onaroll acknowledge that there have been no warranties, representations, covenants or understandings made by either Party to the other, except such as are expressly set forth in the Agreement. Without limiting the foregoing, Client acknowledges and agrees that, in entering into this Agreement: (1) it has relied solely on the terms and conditions of this Agreement; and (2) it has not relied on any oral or written statements by Onaroll personnel or third parties or on any statements included in any of Onaroll’s written or electronic promotional materials (including its web sites). Except as provided in Section 10.10, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or in any other order documentation you submit shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
These Terms & Conditions were last updated on May 15, 2024
2024, Onaroll, Inc. | All Rights Reserved.
