Rynoh Software License Agreement

]]Effective Date: 08/05/2024 

SOFTWARE LICENSE AGREEMENT 

This Software License Agreement (the “Agreement”) for Segin Software, LLC’s d/b/a Rynoh (hereafter, “Rynoh”, “we” or “us”) websites and software modules (collectively, the “Services”) is between you and us and governs your rights to use the Services.  
 
You are also subject to the Terms of Use, found at www.rynoh.com and any additional terms for certain Rynoh software modules (“Additional Terms”) which you purchase or opt into. By using the Services, you agree to be bound by all the terms and conditions contained in this Agreement and applicable Additional Terms. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DECLINE THE LICENSE TERMS AND DO NOT USE THE SERVICES. 

1. Definitions. Capitalized terms will have the meaning set forth in this Section 1 and as otherwise defined elsewhere in this Agreement.

1.1. “Affiliate” means a person or entity that directly, or indirectly through one or more intermediaries, owns or controls, is owned or is controlled by, or is under common ownership or control with, another person or entity. 

1.2. “Available” or “Availability” means the periods where you and any and all Authorized Users can access the Hosted Solution and each purchased Module, including retrieval of reconciliation reports or data. 

1.3. “Downtime” means the period when either Rynoh’s or your testing or observation shows that any Authorized User cannot access the Hosted Solution or any Module, or an  

Authorized User cannot retrieve reconciliation reports or data. “Downtime” will not include any periods where the Hosted Solution or individual Modules are not Available as a result of or because of (i) Scheduled Maintenance; (ii) failure of your equipment or facilities; (iii) the performance or nonperformance of any third-party services; (iv) any period where we agree that the Downtime was not the fault of us or any of our third-party vendors; (v) any changes to your business requirements that it does not report in advance to us and that is not addressed by us through a written agreement or amendment; (vi) the failure of any code or configurations managed or written by the you or any of the your third­party vendors; (vii) the occurrence of a Force Majeure event under Section 19.9; or (viii) Internet failure or congestion.  

1.4. “Hosted Solution” refers collectively to Rynoh’s Website, Modules, databases, programs, software, operating systems, and related material used to facilitate the Rynoh software as a service (SaaS) product.  

1.5. “Module” or “Modules” refers to the individual Rynoh software that makes up the Hosted Solution.  

1.6. “User Data” means all data entered by Authorized Users into, and data from Authorized Users gathered by the Hosted Solution.  

1.7. “Website” means the website at https://rynoh.com.  

2. Authority. If the individual (“you”) accepting this Agreement is accepting on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case “you” shall refer to such entity and its affiliates. If you do not have the authority to accept this Agreement, you must not use the Services.

    

3. Changes to the Agreement. We may modify the Agreement (including any Additional Terms,) at any time by posting a revised version. Any changes to the Agreement will be effective immediately upon posting. You waive any right you may have to receive specific notice of such changes. Please review the Agreement each time you use the Services, as your continued use of the Services after such posting (or other notification, if any) means you accept and agree to be bound by the modified Agreement.

    

4. Intellectual Property Rights.

4.1. Ownership. Title and full ownership rights in and to the Hosted Solution shall at all times remain with Rynoh. You understand that Rynoh’s Hosted Solution is comprised of proprietary information and trade secrets of Rynoh, whether or not any portion thereof is or may be validly copyrighted, patented, or trademarked under applicable law.  

4.2. Rights. This Agreement does not grant any intellectual property rights not expressly contained herein. You acknowledge that Rynoh has exclusive right, title and interest in and to the Hosted Solution. All applicable rights to patents, copyrights, trademarks, trade secrets, know-how, inventions, technologies, methods, techniques, and interfaces in the Hosted Solution that are developed with or for you, in whole or in part, or modified upon your request, are and shall remain the property of Rynoh. You will not, and will not allow your Authorized Users to, at any time, do or cause to be done any act or thing impairing or tending to impair any part of such right, title and interest. You and your Authorized Users’ use of the Hosted Solution shall not create in you or your Authorized Users’ favor any right, title or interest in the Hosted Solution, except as expressly provided herein.  

4.3. Trademarks. Rynoh, Rynoh’s Website, and all related logos and software comprising the Hosted Solution are either trademarks or registered trademarks owned or licensed by Rynoh and, except as expressly provided herein, may not be copied, imitated or used, in whole or in part, without the prior written permission of Rynoh. In addition, all page headers, custom graphics, button icons, and scripts comprising the Hosted Solution are service marks, trademarks, and/or trade dress of Rynoh and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Rynoh.  

4.4. Notices. You will not remove, modify, or obscure any copyright notice, trademark notice, or other proprietary rights notice anywhere within the Hosted Solution.  

4.5. Technical Data and Invention. Unless specifically and expressly identified and priced in a statement of work between the Parties as a separate item or items to be developed and provided by us (and in that event, only to the extent so identified and priced), this Agreement confers on you no right in, license under, access to, or entitlement of any kind to any of our technical data, including but not limited to, design, process technology, software, programs, modules, graphics, code, drawings, algorithms, or our inventions (whether or not patentable), irrespective of whether any such technical data or invention or any portion thereof arose out of work performed under or in the course of this Agreement, and irrespective of whether the you have paid or are obligated to pay us for any part of the design and/or development thereof.  

5. Limited License, Uses & Restrictions

5.1. Limited License. Rynoh hereby grants you and your Authorized Users a non-exclusive, non-assignable, non-transferable, revocable, limited license to access and use the Services according to the provisions herein (the “Limited License”).  

5.2. “Authorized Users” means the named or specified (by password or other user identification) individual authorized by you to use a Limited License, regardless of whether the individual is actively using the Hosted Solution at any given time. You may only authorize your own employees or a third party to be Authorized Users; provided that such third party is limited to use the Hosted Solution solely in connection with your business operations as conducted by or through such third party. You are not limited in the number of Authorized Users you create per Limited License. You are responsible for keeping accurate records of each Authorized User. You are also responsible for ensuring that you promptly prevent access to employees who leave your employ or who otherwise become non-Authorized Users. You hereby agree to be held liable for any unauthorized access of the Hosted Solution by a former employee or non-Authorized User of yours.  

5.3. Limited Access. The Hosted Solution will only be accessed or used by the Authorized Users holding a valid Limited License as described above. It shall be a material breach of this Agreement for any Authorized User to share his or her login credentials with any person. Subject to the terms of this Agreement, Authorized Users shall have the right to use the Hosted Solution only for your internal business purposes.  

5.4. Limitations on Use. You will not, and will not permit your Authorized Users to, directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms comprising the Hosted Solution; modify, translate, or create derivative works based on the Hosted Solution; or rent, lease, distribute, sell, resell, sublicense, assign, or otherwise transfer rights to the Hosted Solution; or use the Hosted Solution for timesharing or service bureau purposes or otherwise for the benefit of a third party. Because the Hosted Solution is proprietary, You will not (and will not allow your Authorized Users to) publish or disclose to third parties any evaluation of the Hosted Solution or any component thereof without our prior written consent. You acknowledge that we retain exclusive ownership throughout the world of the Hosted Solution and its content, any portions or copies thereof, and all rights therein.  

Upon termination of this Agreement for any reason, each Limited License will terminate, and you and any person or entity using or accessing the Hosted Solution by any means through any Authorized User’s account will cease to use and have access to the Hosted Solution.  

5.5. Any violation of this Section shall be a material breach of this Agreement and allow us to terminate access to the Hosted Solution immediately. We may reactivate a Limited License after termination for breach according to this Section in its sole and absolute discretion.  

5.6. To the extent applicable, the terms of this Agreement will govern any software upgrades provided by Rynoh that replace and/or supplement the original services or products, unless such upgrade is accompanied by a separate license or Additional Terms (such license or terms must be contained in a signed writing to be valid) in which case the terms of that license or such Additional Terms will govern.  

6. Services & Maintenance.

6.1. Hosting. Subject to your payment in full of all Fees (defined by Section 11) owed to us pursuant to this Agreement, and subject further to your compliance with the other terms, conditions and restrictions of this Agreement, we agree to provide an ISO 27001 certified Hosted Solution for use by you, by remote connection through your supported web browser and communications equipment separately provided by you, to our Website.  

6.2. Deployment Services. We will provide, at no additional cost, installation, configuration, and training services as required to implement and use the Hosted Solution at your location through a web browser and internet connection provided by you.  

6.3. Backup and Recovery Services. We will use commercially reasonable efforts to periodically back-up and/or replicate and to periodically test restoration of User Data.  

6.4. Reports. During the Term, up to seven years of monthly reports will be available on the Hosted Solution and PDF versions of the reports can be printed or downloaded as needed, by you.  

6.5. Scheduled Maintenance. Only our authorized personnel will perform maintenance, upgrades, patches, or enhancements for the Hosted Solution (together “Maintenance”). Maintenance will occur between 8:00 p.m. and 6:00 a.m. EST (“Scheduled Maintenance”). Maintenance to the production environment that requires a server reboot will be performed during the Scheduled Maintenance.  

6.6. Help Desk. During the Term of this Agreement, we shall use commercially reasonable efforts to provide telephone support related to problems associated with the operation of the Hosted Solution. If we are unable to resolve any problems through telephone support, or if you report any defects in the Hosted Solution, then we will invoke maintenance and support services from third-party vendors chosen by us. You agree to report any problems in accordance with our standard reporting procedures. Our technical support team personnel generally will be available during the hours of 8:00 a.m. to 6:00 p.m., Eastern Time, Monday through Friday, excluding holidays.  

6.7. Subcontractors. We may use subcontractors and permit them to fulfill our obligations under this Agreement, so long as such subcontractors perform such services at the direction, and under our supervision. Such subcontractors will be required to enter into an agreement with us that contains terms at least as restrictive as the terms of this Agreement. Such agreement shall ensure that all such subcontractors will comply with the applicable provisions of this Agreement. Subcontracting or delegation of any portion of our obligations under this Agreement shall not relieve us from any of our obligations under this Agreement, and we shall remain fully responsible for all such subcontracted or delegated obligations, and for the acts and omissions of our subcontractors. For the avoidance of doubt, all acts and omissions of our subcontractors shall be attributable to us for all purposes, including our possession of your Confidential Information. In all cases, we shall be responsible and liable for the acts and omissions of each independent contractor, subcontractor (including its employees), or other non-employee of us to the same extent as if such acts or omissions were by us or our employees and shall be responsible for all fees and expenses payable to any subcontractor.  

7. Availability & Service Credits.

7.1. Availability. We will use commercially reasonable efforts to maintain the Availability of the Hosted Solution at a rate of 99.5% (or a Downtime rate of 0.5%) for each calendar month. Determining Availability for purposes of this Section 7 will exclude all periods of Scheduled Maintenance.  

7.2. Service Credit. If, during any calendar month, the Hosted Solution or any Module there of are not 99.5% Available, then your exclusive remedy under this Agreement will be a Service Credit. The Service Credit will be equal to a percentage of the Fees paid by each you for the calendar month in which the Hosted Solution or any Module thereof was not Available, and will be calculated as follows:  

Availability Service Credit  

• 99.5% to 100% 0% 

• 99% to 99.49% 5% 

• 98% to 98.99% 7.5% 

• 95% to 97.99% 10% 

• 85% to 94.99% 20% 

• 75% to 84.99% 30% 

• 65% to 74.99% 40% 

• 55% to 64.99% 50% 

• 50% to 54.99% 75% 

• 0 to 49.99% 100% 

7.3. Compatibility. We will ensure that the Hosted Solution remains compatible with all supported versions of third-party software needed for the correct operation of the Hosted Solution. These include but are not limited to: .Net Framework; Windows Operating Systems; Internet Information Services (IIS); and Microsoft SQL Server. Similarly, the Hosted Solution will be compatible with the most current supported versions of the following Web Browsers: Microsoft Edge; Mozilla Firefox; Google Chrome; and Apple Safari.  

7.4. Security. We maintain User Data in a certified secure data center. We will maintain the integrity and security of User Data, user-ids, passwords, and access to the Hosted Solution.  

7.5. Data and Information Security. You agree that you and your Authorized Users understand and expressly acknowledge that security risks are an inherent risk of doing business on the internet. In particular, third parties may unlawfully intercept or access private communications of your or your Authorized Users on the Hosted Solution. Although we take measures to secure our Hosted Solution, you acknowledge that we do not warrant, represent, or guarantee that information communicated to or from us will be free from tampering, interception, interference or destruction by third parties

8. Data Usage.

8.1. Use of Data. You hereby grant us a non-exclusive, revocable, and perpetual license to access and use the User Data uploaded to the Service in connection with your access to the Hosted Solution. Notwithstanding any other restrictions in this Agreement, you and each Authorized User further agrees that we may use and disclose Deidentified and/or Aggregate Data to improve, enhance, and develop services or provide value to consumers via the services in accordance with our Privacy Policy. You further agree that we may collect and use technical and related information, including, without limitation, technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Authorized Users (if any) related to the Hosted Solution or any other service provided by us, and to verify compliance with the terms of this Agreement. We may use this information to improve products and provide services and technologies to Authorized Users.  

8.2. Rynoh Security. We represent and warrant that we have implemented and throughout the Term of this Agreement will maintain appropriate technological and organizational security measures to (i) protect against any threats, hazards, or unauthorized access to our information systems, the services, and your Confidential Information and (ii) ensure the security, integrity, protection, and confidentiality of your Confidential Information, including any personal data in our possession or control.  

8.3. Rynoh Data. The parties agree that we retain the right to use, sell, disclose, transfer, or rent any (i) Deidentified and/or Aggregate Data, as defined by the California Consumer Privacy Act as amended; and (ii) non-personal information that is generated or derived by us through operation of the service, such as use or performance data.  

9. Your Responsibilities and Obligations.

9.1. Access to Data. You hereby grant us access to your data files that may be stored either in or as a part of any software in use by you and you understand that we may update your data file used by the software database. You further represent and warrant that you will identify to us each instance in which a third party is the owner of the data file that will be accessed by us.  

9.2. Results; Backups. You accept responsibility for selection of the Services to achieve your intended results. You acknowledge that neither Rynoh nor the Services are a primary system of record of User Data, and you shall regularly backup any files for which you intend as such.  

9.3. Account Setup. You agree to (i) provide true, accurate, current, and complete information to us, including your Authorized User information, and (ii) maintain and promptly update changes to information provided to us, including Authorized User information. If you provide any information to us that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, then we may suspend or terminate your account. You are entirely responsible for maintaining the confidentiality of any passwords and any usage and activities that occur in connection with your account.  

9.4. Unauthorized Access. You agree not to permit any unauthorized person to use the Hosted Solution provided by us.  

9.5. Hardware; Equipment; Networks. You shall be solely responsible for obtaining and maintaining all software, hardware (including, without limitation, network systems), telephonic or other communications circuits, and internet service provider relationships that are necessary or appropriate for you to properly access and use the Hosted Solution. We shall have no responsibility or liability under this Agreement for any unavailability to the Hosted Solution that is caused by or related in any manner to any failure of you to obtain and maintain all such software, hardware, equipment, or relationships.  

9.6. Authorized Users. You agree to keep a current list of all Authorized Users under your Limited License and to provide us with this list within five (5) days upon request. You are further responsible for ensuring that Authorized Users who become unauthorized (e.g. because the Authorized User left your employ or were terminated as a contractor) no longer have access to the Hosted Solution (e.g. by deactivating a former contractor or employee’s username and password). You agree to be held liable for any unauthorized access by an unauthorized person because of your failure to deactivate the username and password information for that unauthorized person.  

9.7. Compliance. You hereby represent and warrant that you have sufficient rights in User Data and providing User Data to us will not violate or infringe the rights of any third party. You and each Authorized User agree to only use the Hosted Solution for lawful purposes and only in accordance with this Agreement. You and each Authorized User further agree to comply with all applicable local, state, federal and international laws and regulations while using the Hosted Solution.  

9.8. Security. You and each of your Authorized Users agree not to take any steps to avoid, study, duplicate, or defeat the security measures associated and incorporated with the Hosted Solution. You and each of your Authorized Users agree not to access any data not intended to be accessed by you or log into an account that you are not allowed to access. You and each Authorized User further agree not to attempt to interfere with the Hosted Solution or other users of the Hosted Solution by means of submitting a virus, overloading, flooding, spamming, mail-bombing, crashing or similar destructive actions.  

9.9. Suspension of Services. Any violation of this Section 9 will result in immediate termination of your Limited License, including access to the Website and Modules. We may allow reactivation of your Limited License after curing any breach of this Section in our sole and absolute discretion.  

9.10. Integrations. You may engage with us to more closely integrate the Hosted Solution to your products and platforms so that the Hosted Solution and future versions of the Hosted Solution or new services offered by us remain compatible with future versions of your products and platforms. For avoidance of doubt, it is mutually understood that you will request the development of these integrations via one or more Statements of Work (SOWs), and we may, at our sole discretion, decline to engage in these integration development activities. Should we decline to fund the development of these integrations, the remaining terms of this Agreement shall remain in full force and effect.  

10. Term and Termination. This Agreement commences on the date you first access the Services and continues until all subscriptions and/or order forms hereunder have expired or have been terminated in accordance with this Agreement.

10.1. Effect of Termination. All services provided by us, including the Hosted Solution, will immediately terminate as of 5 PM, US Eastern Time, on the date of termination, along with your Limited License granted herein to access and use the Website and Modules. No event of termination or non-renewal will relieve you of your obligation to pay all Fees and other costs and expenses owed to us through the termination date, and your payment obligations will survive termination of this Agreement.  

10.2. Destruction of User Data. During the Term and for up to 60 days after the termination of this Agreement, you will be granted access to the Hosted Solution solely for the purpose of exporting Reports. Upon termination or non-renewal of this Agreement for any reason other than default by you, we shall, within sixty (60) days of the termination date or expiration of this Agreement, at your written request, destroy identifiable User Data and certify to you that it no longer retains any such User Data, except as required for legal compliance.  

10.3. Survival. The provisions of this Agreement that by their nature extend beyond the termination or non-renewal of this Agreement will survive and remain in effect until all obligations thereunder are satisfied. All disclaimers of warranties, limitations of liability, and indemnification obligations set forth in this Agreement will survive any termination or non-renewal of this Agreement.  

11. Payment. You will be charged in arrears for the Services at the end of each month (“Billing Date”). If we do not receive the full amount of your Service fees within fifteen (15) days of the Billing Date, you agree to pay us all reasonable attorneys’ fees and costs incurred by us to collect any past due amounts. Your account will be deactivated without further notice if any payment is past due, regardless of the dollar amount outstanding. You agree to pay any outstanding balance in full within fifteen (15) days of cancellation or termination of your account. You agree that we will not be liable for any loss caused by cancellation or termination of your account, or any loss caused by unauthorized use of your credit card or any other method of payment by a third party in connection with the Website or Service. Any attempt to defraud us through credit cards or other payment methods, or failure by you to honor charges or requests for payment will result in immediate termination of your account and may result in civil and/or criminal prosecution.

12. Suspension of Services. In the event that any breach of this Agreement by you or any of your Authorized Users threatens, in our reasonable sole belief, the security, confidentiality or integrity of the Website or any part thereof, then we may take any action it deems appropriate, including, but not limited to, immediately revoking the rights of the you or any applicable User to use the User’s account, until such time, as we are satisfied that such security, confidentiality or integrity of the Website is no longer threatened. In addition, we may, at our sole option, immediately terminate your Limited License or charge you the associated expenses incurred by us to counter such threatening actions.  

13. Third Party Services. Certain services may include materials from third parties or links to thirdparty websites. You acknowledge and agree that we are not responsible for examining or evaluating the content or accuracy of any such third-party material or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. Links to other websites are provided solely as a convenience to you. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you.

14. Warranty

14.1.YOUR USE OF THE SERVICE, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, RYNOH, ITS AFFILIATES, ITS SERVICE AND HOSTING PROVIDERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND TITLE, WARRANTIES AGAINST INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, THE ACCURACY, RELIABILITY, QUALITY OF CONTENT IN OR LINKED TO THE SERVICE AND THOSE ARISING BY STATUE OR OTHERWISE IN LAW. ALL SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND USER’S USE IS AT ITS OWN RISK. RYNOH DOES NOT WARRANT THAT THE SERVICES AND SOLUTION WILL BE UNINTERRUPTED, ERROR-FREE, FREE FROM VIRUSES, SECURE, OR ENSURE A PARTICULAR OUTCOME. RYNOH MAKES NO WARRANTY THAT ANY SERVICE OR PRODUCT WILL FULFILL ANY OF USERS’ PARTICULAR PURPOSES OR NEEDS. RYNOH DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY THIRDPARTY MATERIALS OR WEBSITES, OR FOR ANY OTHER MATERIALS, PRODUCTS, OR SERVICES OF THIRD PARTIES.  

14.2. No oral information given by Rynoh, its agents, or employees shall create any additional warranty. No modification or addition to this warranty disclaimer is authorized.  

15. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO CASE SHALL RYNOH’S LIABILITY EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY USER TO RYNOH IN THE TWELVE.

(12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RYNOH BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR OTHER PECUNIARY LOSS, WHETHER IN EQUITY OR AT LAW AND REGARDLESS OF THE LEGAL THEORY (CONTRACT, TORT, ETC.),  

ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OR INABILITY TO USE THE PRODUCTS/SERVICES, EVEN IF RYNOH HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. RYNOHSHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY COSTS OR LOSSES INCLUDING, WITHOUT LIMITATION, ERRONEOUS OR MISPROCESSED TRANSACTIONS, LOST FUNDS, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION, THE COST OF RECOVERING SUCH DATA OR INFORMATION, MISPLACED FUNDS, OR THE COST OF SUBSTITUTE SOFTWARE. THE LIMITATION OF LIABILITY APPLIES EVEN IF AN EXCLUSIVE REMEDY STATED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF RYNOH, ITS AFFILIATES AND YOUR EXCLUSIVE  

REMEDY WITH RESPECT TO THE SERVICE AND ITS USE.  

16. Indemnification. You agree to indemnify, defend and hold harmless Rynoh and its Affiliates, officers, managers, directors, employees, members, shareholders, authorized agents and permitted assigns (the “Rynoh Indemnified Parties”) from and against any and all claims, suits, actions or proceedings, or any threatened claims, suits, actions or proceedings (“Claims”) filed, made or asserted against the Rynoh Indemnified Parties (or any of them) by any third party, and any damages, losses, fees, penalties, expenses or liabilities (including but not limited to reasonable attorneys’ fees and court costs) which are incurred by the Rynoh indemnified Parties (or any of them) as a result of such Claims and which arise from, are connected with, or relate to you, or your agents, employees, or Authorized Users’: (a) gross negligence or willful misconduct; (b) breach of your representations, warranties or covenants made or given in this Agreement; (c) violation of applicable law; (d) violation of third party intellectual property or privacy rights; or (e) any incorrect, inaccurate, harmful, damaging or false information received from you or any Authorized User in connection with you or your Authorized User’s use of the Hosted Solution, including but not limited to the amount of any funds transferred or transmitted by us or our contractors or vendors on behalf of you or any Authorized User in connection with you or your Authorized User’s use of the Hosted Solution.

17. Changes in Regulations. In the event Rynoh determines, in its reasonable discretion, that (i) a change in any law causes, or would potentially cause, the Hosted Solution or any Module therein to fail to materially comply with such laws, or (ii) a change in the rules of any financial network used or utilized by the Hosted Solution materially affects the provision of or our ability to provide the Hosted Solution (each of the foregoing clauses (i) and (ii), constituting a “Regulatory Change”), upon notice to you, we shall, in our sole discretion, be entitled to: (a) change the method of providing the affected Hosted Solution to comply with such Regulatory Change; (b) adjust the applicable Fees to reflect any changes in our costs of providing the affected Hosted Solution caused by compliance with such Regulatory Change; and/or (c) cease providing the affected Hosted Solution or any Module therein if we determine it is no longer commercially reasonable for us to continue to provide such Hosted Solution or any Module therein in light of such Regulatory Change.

18. Confidentiality.

18.1. Confidential Information. Either party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information, data and know-how that is marked or otherwise identified as confidential or that, given the nature of the information or the circumstances surrounding the disclosure, would reasonably be considered to be confidential, including, without limitation, financial or business information or data, service or product plans, programs, systems, research, development, statistics, inventions, and the terms of this Agreement, whether oral or in written, electronic or other media. Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of any breach of this Section by the Receiving Party, or its employees, consultants, officers, directors, partners, equity holders, advisors, agents or representatives (collectively “Representatives”); (ii) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information.  

18.2. Protection of Confidential Information. The Receiving Party shall: (A) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information of similar kind, but in no event less than reasonable care; (B) not use the Disclosing Party’s Confidential Information for any purpose other than to perform the Receiving Party’s obligations or exercise its rights under this Agreement; (C) promptly report to the Disclosing Party any unauthorized disclosure of, or access to, the Disclosing Party’s Confidential Information; and (D) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information for the purpose of performing Receiving Party’s obligations or exercising its rights under the Agreement and who are subject to obligations of nondisclosure and restricted use at least as protective as those of this Section. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives.  

18.3. Legally Required Disclosure. If Receiving Party is required by applicable law, regulation or legal process to disclose any Confidential Information of the Disclosing Party, Recipient shall notify the Disclosing Party promptly so that Disclosing Party may seek a protective order or other appropriate remedy or, in its sole discretion, waive compliance with the terms of this Section. Recipient will furnish only that portion of the Confidential Information which Recipient is advised by counsel is legally required to be disclosed.  

18.4. Return of Confidential Information. At the Disclosing Party’s written request, or upon termination of this Agreement, the Receiving Party shall promptly return, and shall require its Representatives to return, to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party may retain only Confidential Information necessary for legal, accounting and archival purposes.  

18.5. Remedies. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section, without posting bond or other security.  

19. Miscellaneous.

19.1. Taxes. Each party will be solely responsible for the payment of all taxes, duties and other governmental charges properly imposed upon it in connection with the transactions contemplated under this Agreement.  

19.2. Governing Law; Venue. Agreements between the Parties will be governed by the laws of the State of Virginia without giving effect to any choice or conflict of law principles of any jurisdiction. The Parties hereto agree to submit to the exclusive jurisdiction of the United States Federal District Courts within King George County, Virginia and agree to accept service of process by registered or certified mail, return receipt requested, in accordance with Federal rules of civil procedure.  

19.3. Notice. Each party shall deliver all notices in writing to the other party using the most current contact information on file for each party. Each party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (with confirmation of transmission). A notice is effective only if the party giving the notice has complied with the requirements of this Section, and notice will be deemed received (a) upon receipt by the receiving party if personally delivered; (b) two business days after deposit with an overnight courier; (c) four business days after deposit as certified or registered mail; and (d) upon sending an email if transmission of the email is confirmed.  

19.4. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement and any rights or obligations hereunder may not be assigned or delegated by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, and any attempted assignment or delegation without such consent will be void; provided, however, that either party may assign this Agreement in whole without the consent of the other to any Affiliate or to any person or entity which acquires all or substantially all of its assets or stock, whether by sale, merger or otherwise. 

19.5. No Third-Party Beneficiaries. This Agreement is intended to only benefit each party and their respective successors and permitted assigns. This Agreement does not convey any right, benefit, or obligation to third parties.  

19.6. Non-exclusivity. This Agreement is non-exclusive, and each party is free to enter into other agreements with third parties on similar or different terms as this Agreement.  

19.7. Amendments and Waivers. No amendment to any agreement between the parties will be valid unless the amendment is in writing and signed by both parties. Waivers are valid only if in writing and signed by the party so waiving. The failure of a party at any time to require performance of any provision of this Agreement will not affect such party’s rights at a later time to enforce such provision. No waiver by any party of any breach of this Agreement will be deemed to extend to any other breach or affect in any way any rights arising by virtue of any other breach.  

19.8. Severability. Any provision of this Agreement that is determined by any court of competent jurisdiction to be invalid or unenforceable will not affect the validity or enforceability of any other provision of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.  

19.9. Force Majeure. Except for your payment obligations herein, each party shall be excused from performance under this Agreement, and shall not be liable for delay in performance or non-performance attributable in whole or in part to any cause beyond its reasonable control, including, without limitation, the following: (a) action or inaction of government, whether in its sovereign or contractual capacity; (b) judicial action; (c) war, civil disturbance, insurrection, sabotage, terrorist acts or threats, or act of public enemy; (d) labor disputes or strikes; (e) fire, flood, storm, or other act of God; (f) pandemic or public health emergency; (g) power outages; or (h) shortage of energy, materials, labor or equipment.  

19.10. Counterparts. All agreements between the parties may be electronically signed separately, with each copy considered an original, and all copies forming one document.  

19.11. Entire Agreement. This Agreement, including all exhibits, addenda, and schedules contains the complete understanding between the parties concerning the subject matter herein and supersedes all other prior or contemporaneous understandings, promises, or agreements between the Parties. 

RYNOHVERIFI ADDITIONAL TERMS  

For users of the RynohVerifi module, these Additional Terms of Service (“Additional Terms”) apply.  

RynohVerifi sends limited User Data (“Inquiry Data”) to the Early Warning Services, LLC. (“Early Warning”), National Shared Database (“NSD”) through an application programming interface (“API”) provided by U.S. Bank. The Early Warning system uses Inquiry Data to perform account status and identity-to-account matching. RynohVerifi then receives response data (“Response Data”) from Early Warning used to provide payment risk indicators to you.  

Early Warning Services, U.S. Bank, and Rynoh are each “Providing Parties”.  

1. User’s Acknowledgements

1.1. You are solely responsible for the accuracy of the Inquiry Data input and sent to Providing Parties. You certify that you will only use Response Data for a legitimate business need in connection with a business transaction that you or your customer have initiated that is the subject of the Response Data.  

1.2. You shall not: (a) distribute, transmit, disseminate, or disclose, in any form or by any means, any part of the Response Data to any person or entity other than to the individual that is subject of the Response Data in connection with disclosures required to be made under Applicable Law (as defined below); (b) allow any third party to access the Response Data; or (c) sell, resell, sublicense, or otherwise transfer any part of the Response Data to any other person or entity.  

1.3. If you use Response Data to take adverse action against a consumer, such consumer must be referred to Early Warning by you for handling disputes concerning the completeness or accuracy of any item of information contained within the Response Data. You shall comply with all applicable provisions of the FCRA and any state equivalent in handling such disputes and making such disclosures.  

1.4. You acknowledge that Providing Parties are not credit reporting agencies. You, not the Providing Parties, shall comply with all applicable provisions of the Fair Credit Reporting Act and any state equivalent applicable to persons who procure consumer reports.  

1.5. You shall not refuse or decline a transaction based solely on the following Response Data: No Information; No Known Information; Not Located or other materially similar responses.  

2. Response Data. You shall not merge, aggregate, or compile Response Data into any other database for use in connection with future inquiries. You shall not retain or store Response Data except to the extent necessary to comply with Applicable Law. For as long as Response Data is in your possession, you shall be responsible for the continuing protection of such Response Data. You shall not store or access Response Data outside of the United States.

3. Moral Turpitude. You shall not permit any of your directors, officers, employees, contractors, subcontractors, attorneys, auditors and accountants, to access RynohVerifi if the person has been convicted of a crime in connection with: (a) a dishonest act, breach of trust, or money laundering, or has agreed to enter into a pretrial diversion of similar program in connection with a prosecution of such offense, as described in Section 19 of the Federal Deposit Insurance Act, 12 U.S.C. § 1829(a); or (b) a felony.

4. No Warranty. You acknowledge and agree that Early Warning and U.S. Bank are not agents of Rynoh. The Providing Parties make no representation or warranty and assume no liability with respect to the Response Data, including, but not limited to, the accuracy, completeness, timeliness or usefulness, of such Response Data. In addition, the Providing Parties assume no liability for errors in the Response Data. Providing Parties provides Response Data as an indicator of the potential risk associated with data received from the Providing Parties; however, no Response Data shall be interpreted by you as indicating no risk and the Providing Parties make no such guarantee. You use Response Data at your own risk, and you agree that the Providing Parties shall have no liability with respect to Response Data.

5. Suspension or Termination of RynohVerifi. The Providing Parties may suspend or terminate the provision of Response Data to you if you do not comply with the requirements of these Additional Terms, or if the Providing Parties are unable to verify your compliance to the Providing Parties’ reasonable satisfaction.

6. Authorization. You authorize Providing Parties to use data submitted in an inquiry for the purpose of: (a) preparing statistical reports and conducting data analytics, parsing routines, data modeling, and other analyses to test and evaluate services; (b) developing and providing new services or enhancements to existing services; and (c) developing and providing services to third parties engaged in the business of offering identity theft protection services to consumers, provided that no personally identifiable information shall be returned to any such third parties. The reports and results of the analyses described in clause (a) may be provided to other parties, provided that such reports and analyses do not identify specific data with respect to any party.

7. Indemnification. You agree to indemnify, hold harmless and defend the Providing Parties and their directors, officers, and employees, and their agents and successors, from and against any and all claims made by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in the investigation or defense (“Damages”), to the extent such Damages arise out of or relate to the following: (a) any breach of any representation, warranty, or covenant of these Additional Terms by you; (b) any errors in your transmission of Inquiry Data; or (c) any improper or unlawful use of Response Data by you.

8. Audit. The Providing Parties shall have the right, during normal business hours, and not more than once per calendar year, upon reasonable advance notice, to review your relevant processes and procedures to verify Participant’s compliance with the terms of the Additional Terms. This includes a review of the inquiries processed and related transactions or transaction decisions.

9. Termination. In addition to the termination rights provided to the Providing Parties in these Additional Terms, Rynoh may terminate or suspend RynohVerifi immediately if any Response Data provided to you is used or disclosed: (a) contrary to the Additional Terms; (b) in violation of any Applicable Law pertaining to the use of RynohVerifi; or (c) you experience any incident that jeopardizes the security of any Response Data in your possession.

10. Security Breach Procedures. In the event of a breach in security resulting in actual or suspected loss of or unauthorized access to Response Data, you shall: (a) immediately notify Early Warning by calling (877) 275-7774, Option 4 and notify Rynoh by contacting its relationship manager, support@rynoh.com and legal@porch.com; (b) conduct a forensic examination to determine to what extend Response Data was compromised; (c) provide to the Providing Parties, in writing, details concerning the breach, including: (i) nature and impact of the breach, (ii) assessment of immediate risk due to the breach, (iii) corrective actions already taken, and (iv) corrective actions to be taken; (d) cooperate with the Providing Parties and any regulators or law enforcement to assist in regaining possession of the Response Data and in preventing its further unauthorized use and to notify affected consumers if required by Applicable Law; and (e) take measures to restore and enhance its security policies and procedures to avoid further breaches. Further, you will reimburse the Providing Parties for any costs incurred due to such loss or unauthorized access.

11. Third-Party Beneficiaries. The Providing Parties retain the right to enforce these Additional Terms, and the Providing Parties are third-party beneficiaries of the Additional Terms.

12. Attorneys’ Fees. If any of the Providing Parties take legal action against you as a result of your violation of the Additional Terms, the Providing Parties will be entitled to recover, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to the Providing Parties.

13. Class Action Waiver. Any Dispute will be conducted only on an individual basis and not in a class, consolidated or representative action or arbitration or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action. Your access and continued use of RynohVerifi signifies your explicit consent to this waiver.