Terms & Conditions
This Agreement (i) applies to and constitutes a legally binding agreement for all visitors, users and other Persons (defined below) who use, visit, establish an account through or otherwise access the Website or Platform in any manner (“users”, “you” or “your”), (ii) governs all Users’ use of the Website and/or Platform.
THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. THEY ALSO CONTAIN IMPORTANT INFORMATION ABOUT CHARGES, TAXES AND FEES WE WILL CHARGE TO YOU. PLEASE READ IT CAREFULLY AND IN ITS ENTIRETY. THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS AND CONSOLIDATED ACTION WAIVER” CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
CHANGES TO TERMS
These Terms may be updated, changed, modified or amended by RADAR from time to time, in its sole and absolute discretion, without notice to you. We always strive to improve the Website and Platform. Thus, these Terms may need to change to accommodate such improvements. Please check this Agreement Regularly on the Website to ensure you have reviewed, understand and agree to the latest iteration of this Agreement . If you don’t agree with any terms or provisions of this Agreement, you are free to reject them, but upon such rejection, you will no longer be able to use the Website or Platform. If you use the Website or Platform in any way after a change to this Agreement is effective, that means you agree to all of the changes. Except for changes by RADAR as described herein, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and us.
USERS REPRESENTING OTHER PERSONS
If you accept or agree to this Agreement on behalf of a company, other legal entity, or any other Person (defined below), you hereby represent and warrant that you have the legal authority to bind that company, other legal entity or Person to this Agreement and, in such event, the terms “User”, “you” and “your” will refer and apply to that company, other legal entity or Person.
“Authorized User” means you and your employees, contractors, representatives or agents authorized by you to access and use the Website or Platform pursuant to the terms and conditions of this Agreement. You are responsible for the acts and omissions of your Authorized Users and any other Person who accesses and uses the Website or Platform using any of your or any of your Authorized Users’ access credentials.
- “Confidential Information” means: (i) with respect to RADAR, the Platform, the Website, the Aggregate Data, the Usage Data, and any and all source or object code or other intellectual property rights relating thereto and any other non-public information or material regarding RADAR’s or its affiliates’ legal or business affairs or strategies, financing, processes, customers, potential customers, properties, systems, pricing, products, services, intellectual property or data; and (ii) with respect to you, your Nodes, the Customer Materials and any other non-public information or material regarding you, your legal or business affairs, financing, employees, customers, properties, or data, which you have marked as “confidential” or with a similar legend or which, given the nature of such information and circumstances surrounding its disclosure, should reasonably be understood to be confidential. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior the disclosure of such information by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without use of or reference or access to the Confidential Information of the Disclosing Party, as established by documentary evidence; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
- “Customer Materials” means any data, information, and other materials that you or your Authorized Users submit to the Platform, including, without limitation, the personal information (such as name, email address, and other identifying information) of you and/or your Authorized Users.
- “Documentation” means the manuals, specifications, guides, briefs, papers, content and other materials describing the functionality, features, operating characteristics, and/or use of the Website and/or Platform, as RADAR may make available to you from time to time, whether in written or electronic form.
- “Fees” means the fees we charge for your access to and use of the Platform, on a per Node per month basis, volume usage basis, or on such other bases and/or for such other features as the Company may determine to offer from time to time, in each case as set forth our price list found at www.deploy.radar.tech/pricing, as it may be amended from time to time in RADAR’s sole and absolute discretion (the “Price List”).
- “Harmful Code” means computer code, programs or programming devices that are intentionally designed, disseminated or applied to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including, without limitation, aesthetic disruptions or distortions, the operation of the Platform or the Website (or other RADAR product), or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform or Website (or other RADAR product) to cease functioning or would damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform or Website (or other RADAR product).
- “Law” means any statute, law, ordinance, regulation, regulatory guidance rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
- “Node” means an individual access point entity to a blockchain network and contains the data and tooling required to interact with such blockchain network.
- “Party” may be used to refer to either you or RADAR.
- “Parties” refers to the parties to this Agreement, you and RADAR, collectively, including any other Person you bind to this Agreement.
- “Person” means any individual, sole proprietorship, partnership, corporation (including any corporation which elects subchapter S status under the Code), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any government or any agency or instrumentality or political subdivision thereof.
ACCESS AND USE
Access to the Platform and Website. RADAR hereby grants you and your Authorized Users a limited, non-exclusive, non-transferable (except as permitted under Section 13.3 below) right and license, without the right to grant sublicenses, to access and use the Platform and Website (and any Documentation that RADAR may provide in connection therewith) to develop, launch, and manage Nodes solely for your own internal, business purposes, subject to the terms and conditions of this Agreement. To develop, launch and manage a Node, and to take advantage of the above referenced license, you will be required to sign up for an account, select a password and username (“Deploy User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Deploy User ID a name that you do not have the right to use, or another Person’s name with the intent to impersonate that Person. You may not transfer your account to anyone else without our prior written consent.
- Modifications. RADAR reserves the right to (i) modify the Platform or Website, or the services provided thereby, from time to time by adding, deleting, or modifying features to improve the user experience or for any other business purposes and (ii) discontinue any feature or function of the Platform or Website or portion thereof, or services offered thereby, at any time, in each case in RADAR’s sole and absolute discretion, with or without notice to you or any other user.
- Service Levels and Support. During the term of this Agreement, RADAR, or our contractors shall host the Platform and Website, periodically monitor the Platform and Website to track and improve the performance thereof, and use commercially reasonable efforts to minimize Website and or Platform downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. RADAR will employ its commercially reasonable efforts to respond to support questions submitted through the Platform or Website, or by email to email@example.com.
- Restrictions on Use. You will not (and will not authorize, permit, or encourage any other Person to): (i) allow any Person other than Authorized Users to access and use the Platform; (ii) share or permit an Authorized User to share with any third party his or her Deploy User ID or other Platform access credentials; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, interface protocols or other intellectual rights of or in the Platform or Website; (iv) modify, adapt, or translate the Platform or Website; (v) make any copies of the Platform or Website or portions thereof; (vi) resell, distribute, or sublicense the Platform or Website or use the Platform or Website for the benefit of anyone other than you or your Authorized Users; (vii) remove or modify any proprietary markings or restrictive legends placed on the Platform or Website, or any content or offerings contained therein; (viii) use the Platform or Website (a) in violation of any applicable Law, (b) to build a product or service competitive with the Platform or RADAR, or (c) for any purpose not specifically permitted in this Agreement; (ix) access or use the Platform or Website to collect any market research for business directly or indirectly competitive with the Platform or RADAR; (x) use any robot, spider, scraper, or other automated means or technology to access the Platform or Website for any purpose without our express written permission, or (xi) introduce, post, or upload to the Platform or Website any Harmful Code. We have the right to monitor your compliance with this Section 4.4 and your use of the Platform and Website generally.
Term. This Agreement commences at the time you access or use the Website or Platform and continues in full force and effect until terminated. The term of each subscription to the Platform commences at the time of your initial purchase (regardless of the number of Nodes purchased), and continues for a period of one (1) month (including any renewal terms, each a “Subscription Term”). The Subscription Term automatically renews on a month-to-month basis, unless you elect not to renew your Subscription Term not less than . Your subscription may be cancelled at any time during the applicable Subscription Term upon written notice to RADAR in accordance with Section 6.2 below. If you purchase additional Nodes during a Subscription Term, your access to and use of such Nodes shall operate under your original Subscription Term, and payment for such Nodes shall be pro-rated for any partial month during which you purchase such Nodes. If you have entered into a separate order form (each, an “Order”) with RADAR for your Node subscription(s), such Order may set forth an alternative Subscription Term, fees, or payment terms; provided, however, that no Order shall be effective unless signed/accepted by RADAR. In the event any term of this Agreement conflicts with any term in an executed Order, the term in the Order shall govern and control.
- Termination. Subject to your right to cancel a subscription at any time as provided in Section 6.2, you or RADAR may terminate this Agreement at any time, for any reason, upon thirty (30) days’ advance written notice to the other. In addition, you or RADAR may terminate this Agreement upon written notice to the other if the other Party materially breaches this Agreement and fails to cure such breach within ten (10) business days of its receipt of such written notice (for “Cause”). In addition, RADAR may terminate this Agreement for Cause immediately upon written notice, without a cure period, if (i) you use the Platform or Website in any manner that violates any applicable Law, (ii) your Nodes or your use of the Platform or Website infringes the intellectual property or privacy rights of any third party, (iii) you transmit or attempt to transmit any Harmful Code to the Platform or Website, (iv) you use the Platform or Website in any manner that imposes or may impose an unreasonable burden or load on the Platform or Website or on RADAR’s infrastructure, as determined in RADAR’s sole and absolute discretion, or (v) you are found to be in violation of Section 4.4 above. RADAR can also terminate this Agreement under the limited circumstances set forth in Section 11.2 below
- Effect of Termination. Upon termination of this Agreement for any reason, you shall immediately cease all access to and use of the Platform; provided, however, that for a period of three (3) days following any termination, RADAR shall permit you to access the Platform solely for the purpose of downloading your Customer Materials. After such three (3) day period, RADAR has no obligation to return to you any Customer Materials or grant you any further access to the Platform. If this Agreement is terminated by RADAR for convenience or under Section 11.2, or terminated by you for Cause, RADAR will issue you a refund for any Fees that you have pre-paid but for which you did not receive corresponding access to the Platform, which refund will be pro-rated to the effective date of termination. If Radar terminates this Agreement for Cause, or if you terminate this Agreement for convenience, you shall not be entitled to such a refund, subject to Section 4.2 below.
- Survival. The following provisions will survive termination of this Agreement: Section 3 (“Definitions”), Section 5.3 (“Effect of Termination”), this Section 5.4 (“Survival”), Section 6 (“Fees”) Section 7 (“Intellectual Property”), Section 8 (“Confidentiality; Feedback”), Section 9 (“Representations and Warranties; Our Disclaimer”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), Section 12 (“Binding Arbitration”), Section 13 (“Exclusive Venue”), Section 14 (“Class Action Waiver”), Section 15 (“Equitable Relief”), and Section 16 (“General Provisions”).
Purchasing Nodes. You or your Authorized Users may purchase any number of Nodes to be developed, launched, and managed via the Platform. Fees are based on a per Node per month subscription, as set forth on the Price List.
- Recurring Payments. Unless otherwise provided in an Order, at the time of your first purchase on the Platform you will be required to provide valid payment information (your “Payment Method”) so that we can bill you through a payment account linked to your account on the Platform and your Deploy User ID (your “Billing Account”). Unless otherwise provided in an Order (in accordance with the Price List), by purchasing a subscription to a Node, you acknowledge and agree that each Node has an initial and recurring payment charge at the then-current per Node per month Fee. You further agree that RADAR, or its third-party Payment Processor (defined below), may submit monthly charges to your chosen Payment Method without further authorization from you, unless and until you provide written notice (via email or through the Platform) to RADAR that you wish to cancel your subscription, not renew for an additional Subscription Term, or change your Payment Method. You may cancel a subscription on a per Node basis at any time upon notice to RADAR, and the effective date of such cancellation shall be the last day of the applicable Subscription Term (the last day of the month during which you provide such notice). In other words, except as set forth in Section 5.3, you will not receive a refund of any Fees paid for the month in which you cancel your subscription. You further accept responsibility for all recurring charges prior to cancellation, including, where applicable, any charges processed by RADAR or its third-party Payment Processor after the expiration date of your Payment Method. Some of the services provided through the Platform may involve access for an initial period, for which there is a one-time charge, followed by recurring charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Platform services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL YOUR SUBSCRIPTION TO THE PLATFORM THROUGH YOUR ACCOUNT SETTINGS OR TERMINATE YOUR DEPLOY ACCOUNT BEFORE THE END OF THE RECURRING TERM. THE SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, RADAR WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
- Payment Method. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT AND PAYMENT METHOD. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT/PAYMENT METHOD CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. YOU MAY MAKE CHANGES TO SUCH INFORMATION THROUGH THE PLATFORM BY ACCESSING YOUR ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF THE PLATFORM UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION TO THE PLATFORM AS SET FORTH ABOVE.You agree to keep a valid Payment Method on file with Radar at all times during the Subscription Term.
- Fees. All Fees are in U.S. dollars and exclusive of all sales, use, and other applicable taxes, all of which shall be for your account. RADAR shall automatically charge you any such taxes and indicate such taxes as a separate line item in your monthly payment receipt. Unless expressly provided in this Agreement, all Fees are non-refundable.
- Suspension for Non-Payment. In addition to RADAR’s other rights and remedies under this Agreement and at law, RADAR may suspend your access to the Platform if it is unable to process any payment due to an expired or invalid Payment Method. We will use commercially reasonable efforts to notify you and provide you an opportunity to provide an updated Payment Method prior to suspending access, but are not obligated to do so under any circumstances. RADAR reserves the right to charge interest on any past due amounts at a rate of 1.5% per month, or the maximum amount permitted by law, whichever is greater.
- Reaffirmation of Authorization. Your non-termination of this Agreement and/or continued use of the Platform reaffirms that we are authorized to charge your Payment Method for your use of the Platform. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your Fees may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Platform.
RADAR Materials. The Platform and Website may contain material, such as software, text, graphics, commercial symbols, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of RADAR (collectively referred to as the “Content”). The Content may be owned by us or licensed to us by third parties. The Content is protected under both United States and foreign Laws. Unauthorized use of the Content may violate copyright, trademark, and other Laws. You have no rights in or to the Content or any intellectual property rights therein, and will not use the Content except as expressly permitted under this Agreement. No other use is permitted without our prior written consent, which must be obtained in each instance. To the extent you are permitted to use any Content, you must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, convey, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. The trademarks, service marks, commercial symbols and logos used and displayed on the Platform or Website may be registered and/or unregistered trademarks or service marks of ours of our licensors (collectively, the “Trademarks”). Nothing on the Platform or Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission, specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Trademarks inures to the benefit of RADAR or its licensors, as applicable.
- Customer Materials. Subject to the terms and conditions of this Agreement, you hereby grant RADAR and its affiliates a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Materials solely for the purpose of providing you with access to and usage of the Platform and Website hereunder. Upon expiration or termination of the Agreement, we may retain an archival copy of the Customer Materials kept in the normal course of business or for purposes of complying with applicable Law, provided that they will remain subject to the confidentiality provisions contained herein.
- Aggregated Data. We monitor the performance and use of the Platform and Website by you and your Authorized Users, and we collect data in connection therewith, including, without limitation, the date and time that you access the Platform and Website, the portions or pages of the Platform and Website visited, the frequency and number of times such pages are accessed, and other usage data (the “Usage Data”). We may combine this Usage Data with other data (including Customer Materials), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”). Aggregate Data does not identify you or any individual. Once Company Materials are aggregated and anonymized, they are no longer deemed Company Materials hereunder and are considered Aggregate Data. You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data for any lawful purpose.
- Ownership. As between the Parties, all right, title, and interest in and to the Platform and Website, the Documentation, the Usage Data, and the Aggregate Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and any and all intellectual property rights of any kind or nature therein, are and will remain the sole and exclusive property of RADAR. Other than the limited license granted in Section 4.1 with respect to your right to access and use the Platform, Website, and the Documentation, nothing in this Agreement shall be construed as granting you or your Authorized Users any rights or licenses in or to the Platform, Website, or the Documentation, all of which are expressly reserved by RADAR. Subject to Section 7.1 and Section 7.2, all right, title, and interest in and to Customer Materials, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, will be and remain your sole and exclusive property.
Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as secret and confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, managers, partners, employees, contractors or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a bona fide need to know such information, such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein and such Representatives are informed of the confidential nature of the Confidential Information. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will, to the extent permitted by Law, provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 8.1. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section 8.1, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
- Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 8.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 8.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it hereunder, in equity or under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 8.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
- Feedback. During the Term, you or your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Platform and Website (“Feedback”). You hereby agree that all Feedback is and shall be given entirely voluntarily by you and that you shall not give Feedback that is subject to license terms of any third party that would require any RADAR intellectual property to be licensed or otherwise shared with any third party. You hereby acknowledge and agree that all Feedback and all intellectual property rights therein shall be deemed the property of RADAR. You hereby acknowledge and agree that RADAR shall be the sole owner of the Feedback and shall have the exclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as RADAR sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise and that you shall have no right of ownership of the Feedback nor any right to use the Feedback for any purpose. You hereby grant, assign, and convey to RADAR all right, title, and interest in and to all Feedback (as well as any copyrights, patents, trade secrets, any intellectual property rights therein and similar rights attendant thereto).
Additional Representations Regarding Customer Materials and Feedback. In addition to the representations and warranties provided elsewhere herein, you represent, warrant, and agree that you will not contribute Customer Materials or Feedback or otherwise use the Website or Platform in a manner that:
- Infringes or violates the intellectual property rights or any other rights of any other Person (including RADAR)
- Is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable
- Jeopardizes the security of your Deploy account or Billing Account or anyone else’s (such as allowing someone else to log in to the Platform as you)
- Attempts, in any manner, to obtain the password, account, or other security information from any other user
- Violates the security of any computer network, or cracks any passwords or security encryption codes.
REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER
Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder. You further represent and warrant to RADAR that (a) you have obtained and shall obtain all necessary rights and consents to provide RADAR with the Customer Materials and Feedback including, with respect to any personal information contained therein, the express consent from any applicable individuals to disclose and transfer such information to RADAR for the purposes contemplated herein, (b) the Customer Materials and the Nodes (and your use thereof) do not and shall not infringe, misappropriate, or otherwise violate the rights of any third party including, without limitation, intellectual property rights, and (c) your performance hereunder shall comply with all applicable Laws, including, without limitation, all Laws relating to information privacy. You understand that if your use of the Website or Platform is prohibited by applicable Laws, then you aren’t authorized to use the Website or Platform. We can’t and won’t be responsible for your using the Website or Platform in a manner that breaks applicable Law.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE PLATFORM, WEBSITE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY RADAR ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER RADAR NOR ITS LICENSORS NOR ITS AFFILIATES NOR ITS REPRESENTATIVES MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. RADAR, FOR AND ON BEHALF OF ITSELF AND ITS LICENSORS, REPRESENTATIVES AND AFFILIATES, HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT RADAR AND OUR LICENSORS, REPRESENTATIVES OR AFFILIATES MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THE APPLICABLE LAW. SOME JURISDICTIONS, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
- You hereby represent and warrant that neither you nor any of your subsidiaries, nor any Person controlling, controlled by or under common control with you, or your clients (i) is or has been on the list of Specially Designated Nationals and Blocked Persons maintained by the United States Department of the Treasury, Office of Foreign Asset Control (currently available at http://treas.gov/offices/enforcement/ofac/sdn/index.shtml), (ii) is or has been on the “Denied Persons List” by the Bureau of Industry and Security of the United States Department of Commerce, or (iii) is subject to any sanctions or similar programs which would prohibit U.S. Persons from doing business with you.
LIMITATION OF LIABILITY
Consequential Damages Waiver. IN CONNECTION WITH ANY WARRANTY, CONTRACT, COMMON LAW TORT OR OTHER CLAIM, WE AND OUR LICENSORS, AFFILIATES AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION OR RESULTING FROM THE USE OR INABILITY TO ACCESS AND/OR USE THE PLATFORM OR WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Liability Cap. UNDER NO CIRCUMSTANCES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY CLAIM FOR INDEMNIFICATION HEREUNDER, SHALL RADAR OR ITS AFFILIATES OR ITS OR THEIR REPRESENTATIVES BE LIABLE TO YOU (INCLUDING YOUR AUTHORIZED USERS OR AFFILIATES OR THEIR OR YOUR REPRESENTATIVES) FOR ANY DIRECT DAMAGES THAT YOU (INCLUDING YOUR AUTHORIZED USERS OR AFFILIATES OR THEIR OR YOUR REPRESENTATIVES) MAY SUFFER, AS A RESULT OF YOUR USE OF THE PLATFORM OR WEBSITE, IN EXCESS OF THE TOTAL FEES THAT YOU HAVE PAID TO US WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY SUCH CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT, MAY BE BROUGHT BY ANY USER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
Indemnification by you. You will indemnify, defend, and hold harmless RADAR, our affiliates, our licensors, and hosting providers, and our and their respective Representatives (the “RADAR Indemnified Parties”), from and against any and all damages, losses, liabilities, costs, or expenses of any kind or nature, including reasonable attorneys’ fees (“Losses”), incurred by any of such RADAR Indemnified Parties in connection with any third-party action, claim, proceeding, dispute, allegation or judgment (each, a “Claim”) arising from or relating to (i) your or any of your Authorized Users’ or Representatives’ breach or violation of this Agreement; (ii) your Nodes and/or your or your Authorized Users’ or Representatives’ use thereof; or (iii) your or any of your Authorized Users’ or Representatives’ actions, inactions, omissions, negligence or misconduct, willful or otherwise.
- Indemnification by RADAR. RADAR will indemnify, defend, and hold you harmless from and against any Losses incurred by you in connection with any third-party Claim (i) arising directly from RADAR’s gross negligence or willful misconduct, or (ii) alleging that you or your Authorized Users’ access to and use of the Platform or Website in compliance with this Agreement infringes or misappropriates any third-party intellectual property rights (an “Infringement Claim”), provided that any such indemnification obligations shall be, to the fullest extent permitted by law, subject to the liability cap set forth in Section 10.2 above. In the event we reasonably determine that the Platform or Website is likely to be the subject of a third-party Infringement Claim, we will have the right (but not the obligation) to, at our expense: (i) procure for you the right to continue to use the Platform or Website as provided in this Agreement; (ii) replace the infringing components of the Platform or Website with other components with equivalent functionality; or (iii) suitably modify the Platform or Website so that it is non-infringing and functionally equivalent. If none of the foregoing options are available on commercially reasonable terms, we may terminate this Agreement without further liability to you. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold you or your Authorized Users or Representatives harmless with respect to any third-party Infringement Claim to the extent the Infringement Claim arises from or is based upon (a) your or your Authorized Users’ or Representatives’ use of the Platform or Website not in accordance with the Documentation or this Agreement; (b) any unauthorized modifications, alterations, or implementations of the Platform or Website made by or on behalf of you (other than by us); (c) use of the Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (d) use of the Platform or Website in a manner or for a purpose for which it was not designed. This Section 11.2 states your sole and exclusive remedy, and our sole and exclusive liability, regarding any third-party Infringement Claim.
- Procedure. The indemnification obligations set forth in Section 11.1 and Section 11.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim, provided, however, that any failure of the indemnified Party to provide prompt written notice pursuant to this Section 11.3 shall excuse the indemnifying Party only to the extent that it is prejudiced thereby; (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
Arbitration; Beneficiaries. PLEASE READ THIS SECTION 12 CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH RADAR AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM RADAR. Both you and RADAR acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, RADAR’s Representatives are third-party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Representatives will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third-party beneficiary hereof.
- Arbitration Rules. Applicability of Arbitration Agreement. The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Denver County, Colorado, USA. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com.
- Costs of Arbitration. Each Party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with the Rules. Each Party shall be responsible for its own costs of attending any in-person arbitration.
- Small Claims Court. Infringement. Either you or RADAR may assert claims, if they qualify, in small claims court in Denver Country, Colorado or any United States county where you live or work, if permitted by such Court’s rules and if the dispute is within such Court’s jurisdiction. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights of any kind or nature.
- Opt-out. You have the right to opt out of the provisions of this Section 12 by sending written notice of your decision to opt out to the following address: c/o Radar Relay, Inc., 8 The Green, STE A, Dover, DE 19901, postmarked within thirty (30) days of first accepting this Agreement. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your Deploy account, and (iii) a clear statement that you want to opt out of Section 12 of this Agreement.
If you send an opt-out notice in accordance with Section 12.4 above and/or in any circumstances where the foregoing arbitration provisions permit either you or RADAR to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then the foregoing arbitration provisions shall not apply to either party, and both you and RADAR agree that any judicial proceeding (other than small claims actions) will be brought exclusively in the state or federal courts located in Denver County, Colorado, USA, or the federal district in which that county falls (the “Designated Courts”). With respect to any disputes arising out of or Relating to this Agreement that are not resolved in accordance with Section 12 above, each Party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. Each Party hereby irrevocably waives all claims of immunity from jurisdiction and any objection which such Party may now or hereafter have to the laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute, action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the Parties also agrees that delivery of any process, summons, notice or document to a Party hereof in compliance with Section 16.12 of this Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect to any matters to which the Parties have submitted to jurisdiction as set forth above.
CLASS AND CONSOLIDATED ACTION WAIVER
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor RADAR is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 13 above. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights or any provision hereof related thereto or to our confidential and proprietary information, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in Denver County, Colorado, USA for the purposes of any such action by us.
Children’s Online Privacy Protection Act. The Children’s Online Privacy Protection Act requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13) years of age. We do not knowingly collect or solicit personally identifiable information from children under thirteen (13). If you are a child under thirteen (13), please do not attempt to register for or otherwise use the Website or Platform or any of the Services or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us at firstname.lastname@example.org. You represent and warrant that, if you are an individual, you are of legal age to form a binding contract.
- External Sites. The Platform and Website may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites or the legality of the services provided thereby. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
- Disputes Between Users and Other Third Parties. If there is a dispute between participants on or users of the Website or Platform, or between users and any third party, you agree that RADAR is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you release hereby RADAR, and its Affiliates and it and their Representatives and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Website or Platform. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
- Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that RADAR may, without notice to you or your consent, assign or otherwise transfer this Agreement in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
- Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard for choice of law provisions thereof.
- Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement that is deemed unenforceable in any jurisdiction will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
- Force Majeure. Except for your obligations to pay any Fees and other amounts due hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
- Third-Party Beneficiaries. Except as expressly set forth herein, the Parties agree that there are no third-party beneficiaries under this Agreement.
- Publicity. During the Term, we may refer to you as a user of the Website, and/or a customer or user of the Platform. In connection therewith, we may use your corporate name, trade name, trademarks, and corporate logos. Any goodwill arising from the use of such name and logos will inure solely to your benefit. All other publicity regarding this Agreement will be mutually coordinated and approved in advance in writing by the Parties.
- Notices. Except as expressly set forth otherwise herein, Any notice delivered or required to be delivered under or in connection with this Agreement shall be in writing and shall be sent by confirmed facsimile, nationally recognized (in the country of the sending party) overnight courier or certified mail (return receipt requested). Any notice to you shall be delivered to the address for notice that you provide when registering for the Platform or have provided through the Website. Any notice to RADAR shall be delivered to c/o RADAR RELAY, INC., 8 The Green, STE A, Dover, DE 19901, or such other address as may be provided by update to this Agreement. Additionally, RADAR may notify you via the e-mail address that you provide when registering for the Platform or have provided through the Website. You may change your notice address by written notice to RADAR, as described above.
- Export. You will not export or re-export, either directly or indirectly, the Platform or Website, or any copies or portions thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, you will not permit Authorized Users, Representatives or any third parties to access or use the Platform or Website in violation of any United States export embargo, prohibition, or other restriction.
- Complete Understanding. This Agreement, together with all Orders (if any) that you have executed with RADAR, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. The Section and other headings in this Agreement are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of this Agreement.
- Acknowledgement. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT.
In the course of operating the Site, RADAR will collect (and/or receive) the following types of information. You authorize us to collect and/or receive such information.
I. Information We Collect/Receive.
C. Geolocational Information. Certain features and functionalities of the Site may be based on your location. In order to provide these features and functionalities we may, with your consent, automatically collect geolocational information from your device or wireless carrier and/or certain third-party service providers. Such information is collectively called the “Geolocational Information.” You may decline to allow us to collect such Geolocational Information, in which case we may not be able to provide certain features to you.
D. Other Information. In addition to the Personal Information, the Billing Information and the Geolocational Information, we may collect or receive from Users additional information (collectively, the “Other Information”). Such Other Information may include:
1. From Your Activity. In order to provide you certain features and functionalities of the Site, and in an ongoing effort to improve our Site, and services, we automatically collect certain information when you use the Site and integrate it with your other devices and services. Such information may include, without limitation:
• IP addresses, browser type and language, referring and exit pages and URLs, date and time, amount of time spent on the Site, what sections of the Site you visit, etc.;
• information about a mobile device, including universally unique ID, platform type and version (e.g., iOS or Android), carrier and country location, hardware and processor information, and network type; and
• activity and usage information occurring via the Site, including, without limitation, the nodes that develop.
2. From Cookies. We collect information using “cookie” technology. Cookies are small packets of data that a website stores on your computer’s or mobile device’s hard drive so that your computer will “remember” information about your visit to the Site. We may use both session cookies (which expire once you close your web browser) and persistent cookies (which stay on your computer until you delete them) to help us collect Other Information and to enhance your experience using the Site. Note that we do not currently respond to browser do-not-track signals. If you do not want us to place a cookie on your hard drive, you may be able to turn that feature off on your computer or mobile device. Please consult your Internet browser’s documentation for information on how to do this and how to delete persistent cookies. If you decide not to accept cookies from us, the Site may not function properly.
For more information on these third parties, including how to opt out from certain data collection (if available by such third parties), please visit the sites below. Please be advised that if you opt out of any service, you may not be able to use the full functionality of the Site.
• For Google Analytics, visit https://www.google.com/analytics
We also use Hotjar’s heat mapping services to display the areas of a Site page where users most frequently move the mouse or click. These services help us to monitor and analyze web traffic. A User can opt out of Hotjar’s services by going to https://www.hotjar.com/opt-out.
• For Google AdWords, you can set preferences for how Google advertises to you using the Google Ad Preferences page at https://adssettings.google.com/authenticated, and if desired, you can opt out of interest-based advertising by cookie settings or permanently using a browser plugin.
We may use and disclose Other Information for any purpose, except where we are required to do otherwise under applicable law. In some instances, we may combine Other Information with Personal Information. If we do, we will treat the combined information as Personal Information as long as it is combined.
II. How We Use and Share Information. You authorize us to use the Personal Information, the Billing Information, the Geolocational Information, and the Other Information (collectively, the “Information”) to:
• Provide the Site and the services offered therethrough and to improve the same;
• To process transactions;
• To solicit your feedback;
• To respond to user inquiries or fulfill user requests and provide related customer service;
• To send administrative information to a user, such as changes to our terms, conditions and policies;
• To personalize the user experience on the Site;
• For business purposes, such as data analysis, audits, fraud monitoring and prevention, developing new products and services, improving our Site, identifying usage trends, determining the effectiveness of our promotional campaigns and expanding our business activities;
• To inform you about our and/or our promotional partners’ products and services; and
• For any other reason or purpose permitted by applicable law.
Without limiting the foregoing, you also authorize RADAR to use and/or share information as described below:
• We will access, use, and share the Information as required to fulfill our contractual obligations to you, provide you with support, and to address your questions or requests regarding our Site;
• We may employ other companies and individuals to perform functions on our behalf. Examples may include providing technical, customer service and marketing assistance. In particular, RADAR uses a third-party cloud hosting provider to store user Information and configurations. These other companies will have access to the Information only as necessary to perform their functions and to the extent permitted by law;
• In an ongoing effort to better understand our customers and our Site, we may analyze certain Information in anonymized and/or aggregate form in order to operate, maintain, manage, and improve the Site and/or services offered thereby. This anonymous information does not identify you personally. We may use this anonymous information, and share and/or license it with and to our affiliates, agents, business and promotional partners, and other third parties. We may also disclose anonymous user statistics in order to describe our Site and business to current and prospective business partners and to other third parties for other lawful purposes.
• We may share some or all of your Information with any of our parent companies, subsidiaries, joint ventures, or other companies under common control with us;
• As we develop our businesses, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, sale of assets, dissolution, or similar event, the Information may be part of the transferred assets; and
• To the extent permitted by law, we may also disclose the Information: (i) in response to lawful requests by public authorities, including for the purpose of meeting national security or law enforcement requirements, (ii) when required by law, court order, or other government or law enforcement authority or regulatory agency; or (iii) whenever we believe that disclosing such Information is necessary or advisable, for example, to protect the rights, property, or safety of RADAR or others.
III. Protection of Your Personal Information. We implement reasonable and appropriate security measures to protect your Personal Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction, taking into account the risks involved in processing and the nature of such data, and comply with applicable laws and regulations. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases, nor can we guarantee that the Personal Information that you supply will not be intercepted while being transmitted to and from us over the Internet.
V. Jurisdiction and Cross-Border Transfer. The Site is controlled and operated by us from the United States and is not intended to subject us to the laws or jurisdiction of any state, country or territory other than that of the United States. A user’s Personal Information may be stored and processed in any country where we have facilities or in which we engage service providers, and, by using the Site, a user consents to the transfer of information to countries outside of the User’s country of residence, including the United States, which may have data protection rules that are different from those of the User’s country. In certain circumstances, courts, law enforcement agencies, regulatory agencies or security authorities in those other countries may be entitled to access a User’s Personal Information.
VI. Certain User Restrictions/Rights.
A. Children. The Children’s Online Privacy Protection Act requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13) years of age. We do not knowingly collect or solicit Information from children under thirteen (13). If you are a child under thirteen (13), please do not attempt to register for or otherwise use the Site or any of the services offered thereby or send us any Personal Information. If we learn we have collected Personal Information from a child under thirteen (13), we will delete that Information as quickly as possible. If you believe that a child under thirteen (13) may have provided us Personal Information, please contact us at email@example.com. You represent and warrant that, if you are an individual, you are of legal age to form a binding contract.
B. California Residents. Under California Civil Code Section 1798.83, California residents have the right to obtain certain information about the types of personal information that companies with whom they have an established business relationship (and that are not otherwise exempt) have shared with third parties for direct marketing purposes during the preceding calendar year, including the names and addresses of those third parties, and examples of the types of services or products marketed by those third parties.. If you are a California resident and (i) you wish to opt out; or (ii) you wish to request certain information regarding our disclosure of your Personal Information to third parties for the direct marketing purposes, please send an e-mail to firstname.lastname@example.org.
As set forth in the table below and pursuant to GDPR, we have provided a description of the ways we plan to use your personal data, which of the legal bases we rely on to do so and the retention period for such personal data. We have also identified what our legitimate interests are where appropriate.
Note that we may process your personal data for more than one lawful ground depending on the specific purpose for which we are using your data. Please contact us if you need details about the specific legal ground we are relying on to process your personal data where more than one ground has been set out in the table below.
You can exercise any of the following rights by notifying us as described below:
• Access. You may email us at email@example.com to request a copy of the personal data the Site’s databases currently contain.
• Correction or Rectification. You can correct what personal data the Site database currently contains by accessing your account (if one) directly, or by emailing us at firstname.lastname@example.org to request that we correct or rectify any personal data that you have provided to us. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause information to be incorrect. Where applicable, we will ensure such changes are shared with trusted third parties. Using the same email address associated with your use of the Site or your Site account, simply type the words “Correction or Rectification” in the subject line of your email.
• Withdraw Consent. At any time, you may withdraw your consent to our processing of your personal data through the Site by notifying us via email at email@example.com. Using the same email address associated with your use of the or your Site account, simply type the words “WITHDRAW CONSENT” in the subject line of your email. Upon receipt of such a withdrawal of consent, we will confirm receipt and proceed to stop processing your personal data. Where applicable, we will ensure such changes are shared with trusted third parties.
• Erasure. If you should wish to cease use of our Site and have your personal data deleted from our Site, then you may submit a request by emailing us at firstname.lastname@example.org. Upon receipt of such a request for erasure, we will confirm receipt and will confirm once your personal data has been deleted. Where applicable, we will ensure such changes are shared with trusted third parties. Using the same email address associated with your use of the Site or your Site account, simply type the words “Erasure / Personal Data Deletion” in the subject line of your email.
• Submit Complaints or Questions. If you wish to raise a complaint on how we have handled your personal data, you can contact us as described below. If you reside in a European Union member state, you may also lodge a complaint with the supervisory authority in your country. email@example.com. Using the same email address associated with your use of the Site or your Site account, simply type the words “Complaints or Questions” in the subject line of your email.
Data Processing Addendum
1.2. This DPA sets forth confidentiality, security, and data privacy requirements with respect to the processing of all Customer Personal Data (as defined below) in connection with RADAR’S provision of the Site and related services set forth in the Terms, and as agreed upon from time to time (the “Services”). Should RADAR determine that any Customer Processing request or instruction infringes the Regulation or applicable Data Protection Regulation, RADAR will notify Customer.
1.3. In the event of any conflict between the provisions of this DPA and the provisions set forth in the Agreement, the provisions of this DPA will apply and control.
2.1. “Affiliates” means – unless defined differently under the Agreement – any organization or entity directly or indirectly controlling, controlled by, or under common control with Customer.
2.2. “Data Protection Legislation” means the laws regulations, and international agreements that contemplate the Processing of Personal Data as applicable to this DPA.
2.3. “Data Subject” means an identified or identifiable natural person to whom Personal Data relates. An identifiable person is one who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to his physical, physiological, genetic, mental, economic, cultural or social identity.
2.4. “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
2.5. “Processing” or “Process” means any operation or set of operations which is performed upon Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
2.6. “Security Incident” means any breach of security that may lead to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with the Services.
2.7. “Sub-Processor” means any data processor engaged by RADAR in connection with the provision of the Services.
2.8. “Supervisory Authority” means a data protection authority or similar regulatory or supervisory body as defined under applicable Data Protection Legislation, including the Regulation.
2.9. “The Regulation” means Regulation (EU) 2016/679 (as amended, including by any rules, regulations, implementing acts, delegating acts, national implementing legislation and regulations, and guidance) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), and any applicable successor data protection regulation(s).
3. Processing of Personal Data
The Parties acknowledge and agree that with regard to the Processing of Customer Personal Data under the Data Protection Legislation and this DPA, Customer is the Controller and RADAR is the Processor. Each Party will comply with the obligations applicable to it under the Data Protection Legislation, including but not limited to the Regulation, with respect to the Processing of Customer Personal Data. The types of Customer Personal Data and categories of Data Subjects that may be Processed under this DPA, include, without limitation, contact information, billing information, information regarding your use of the Site and Services and such other types of information as are set forth in the Agreement or provided to us by a Customer.
4. RADAR’s Obligations as Processor
In regards to the processing of Customer Personal Data, RADAR agrees as follows:
4.1. RADAR will, for the period of the Agreement or until Customer notifies RADAR that it wishes to cancel its use of the Services, Process Customer Personal Data as necessary to perform the Services under the Agreement and for the purposes Customer has provided the Customer Personal Data.
4.2. RADAR will implement and maintain appropriate technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.
4.3. Customer consents to RADAR’S use of Sub-Processors to fulfill its contractual obligations under the Agreement and this DPA. RADAR will implement and maintain appropriate measures to keep all Personal Data confidential and impose legally binding confidentiality obligations on any personnel, contractor, Sub-Processor, or other third party that Process or otherwise have access to Personal Data; such obligations will meet or exceed the requirements set forth in applicable Data Protection Legislation and will survive the termination of the employment relationship. Information regarding current Sub-Processors, including their location and services will be provided within a reasonable time upon request by Customer. This Sub-Processor list may be updated from time to time. RADAR will provide Customer with advance notice before a new Sub-Processor begins Processing any Customer Personal Data.
4.4. Where RADAR, in accordance with the Agreement, engages a Sub-Processor for carrying out specific Processing activities, RADAR will enter into a written agreement with the Sub-Processor that imposes the same data protection obligations and restrictions as set forth in this DPA on the Sub-Processor. Such agreement will provide sufficient guarantees to implement appropriate technical and organizational measures such that the Processing will meet the requirements of applicable law including the Regulation.
5. International Transfers
RADAR represents and warrants that it has a legitimate business purpose and valid legal basis under applicable law for any transfers of Personal Data outside the European Economic Area. At Customer’s request, RADAR will provide Customer with copies of any instruments, including (but not limited to) Standard Contractual Clauses, Privacy Shield Certifications, or consent records, upon which it bases transfers outside the European Economic Area of any Personal Data related to the Services.
6. Information Security and Security Incidents
RADAR will notify Customer, without undue delay, after becoming aware of an accidental, unauthorized or unlawful access, destruction, disclosure, alteration or loss of Customer Personal Data (“Data Incident”) transmitted, stored or otherwise Processed by RADAR or its Sub-Processors (“Data Incident Notification”). RADAR will take reasonable steps to identify the cause of the Data Incident and take steps to remediate the cause of such Data Incident to the extent such remediation is within RADAR’s reasonable control. Notification will be delivered to the email address associated with Customer’s Site account. Customer is responsible for keeping the contact information associated with Customer’s account current.
7. Cooperation and Inquiries
7.1. RADAR will provide reasonable assistance to Customer where necessary to assist with the deletion and return of Customer Personal Data upon a Data Subject’s request.
7.2. RADAR shall make available to Customer all information that is reasonably necessary and within RADAR’s control, for Customer to fulfill its obligations under applicable Data Protection Legislation, the Regulation, and the terms of this DPA, including demonstrating compliance therewith.
7.3. The Parties agree to cooperate with each other to promptly and effectively handle inquiries, complaints, audits, or claims from any court, governmental official, Supervisory Authority, third parties or individuals (including but not limited to the Data Subjects).
7.4. With regards to the protection of the Data Subject’s rights pursuant to applicable law and the Regulation, RADAR will fully cooperate with and assist Customer in responding to such Data Subjects requests. If a Data Subject contacts RADAR to exercise his/her individual rights, RADAR will direct such Data Subject to Customer, will inform the Data Subject that he/she may exercise these rights solely vis-à-vis the Customer, and will further communicate with the Data Subject solely in accordance with Customer’s instructions. RADAR will enable Customer to promptly facilitate the execution of such requests (such as requests for access, rectification, erasure, restriction or portability of Personal Data) at Customer’s request.
8.1. Upon Customer’s written request, RADAR will make available to Customer documentation sufficient to demonstrate that RADAR’s Processing of Personal Data complies with applicable law, including the Data Protection Legislation and the Regulation; Customer agrees to reasonably cooperate with RADAR to identify any particular documentation that may be required. Such documentation will include a copy of all third-party certifications and/or audits, in their then-most-current form, that relate to RADAR’s compliance with data protection, privacy, or information security standards or requirements.
8.2. If, in Customer’s reasonable discretion, the documentation provided by RADAR under Section 8.1 fails to demonstrate RADAR’s compliance with any provision or aspect applicable Data Protection Legislation, Customer may perform an audit of RADAR, at Customer’s sole cost, that includes on-site inspection, for which Customer agrees to provide thirty (30) days’ notice. Customer agrees that such audit will take place during normal business hours and will not disrupt RADAR’s normal business operations. Customer further agrees that Customer shall only have the right to audit RADAR once per calendar year. RADAR agrees to permit and reasonably contribute to such audit, and to ensure that its Sub-Processors permit and contribute to the audit as Customer reasonably deems necessary.
This DPA shall remain in force until the date on which the Agreement expires or is terminated in accordance with its terms.
10. Return/Deletion of Personal Data
Upon termination of the Agreement, RADAR, at the option of Customer, will (i) return all Customer Personal Data Processed in connection with the Services to Customer in a structured, commonly used, and machine-readable format, and will irretrievably delete existing copies and backups, or (ii) destroy and irretrievably delete all Customer Personal Data Processed in connection with the Services, including materials or media containing such Customer Personal Data, and including all copies and backups. RADAR agrees to certify deletion meeting the requirements of this Section upon Customer’s request.
11. Governing Law
This DPA will be governed by and construed in accordance with the laws of the jurisdiction identified in the Agreement as providing the law applicable to the Agreement, if any, except and solely to the extent that a court or administrative body of competent jurisdiction determines that mandatory provisions of applicable data protection law require otherwise.
12. Modification of the DPA
This DPA may only be modified by means of a written amendment signed by both Parties.
13. Invalidity and Severability
If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be void, invalid, illegal or otherwise unenforceable, all other terms and provisions of this DPA shall nevertheless remain in full force and effect, and the invalidity or unenforceability of such provision will not adversely affect the enforceability of any other provision of this DPA. The Parties agree that in the place of the invalid provision, a legally binding provision shall apply which provides for the greatest protection of personal data and most closely approximates what the Parties would have agreed to if they had contemplated the partial invalidity.