Last Updated: August 3, 2026
IF CUSTOMER AND RACOS HAVE ENTERED INTO A SEPARATE AGREEMENT GOVERNING PROVISION OF RACOS’S SERVICES THAT HAS BEEN SIGNED ON BEHALF OF BOTH RACOS AND CUSTOMER, THAT SIGNED AGREEMENT GOVERNS AND APPLIES IN PLACE OF THIS AGREEMENT, NOTWITHSTANDING ANY CHECKBOX OR ELECTRONIC ACCEPTANCE REQUIRED IN ORDER TO USE THE SERVICE. THIS AGREEMENT APPLIES ONLY WHERE NO SUCH SIGNED AGREEMENT IS IN EFFECT.
THESE TERMS OF SERVICE (“AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH RACOS TECHNOLOGIES INC. (“RACOS”) PROVIDES ITS PROPRIETARY HOSTED SOFTWARE APPLICATION AND RELATED SERVICES TO RACOS CUSTOMERS (EACH REFERRED TO HEREIN AS A “CUSTOMER” OR “YOU”, INCLUDING THE INDIVIDUAL OR ENTITY ENTERING INTO THIS AGREEMENT) TO GENERATE, EDIT, MANAGE, AND COLLABORATE ON SCOPES OF WORK DERIVED FROM PROJECT DOCUMENTS, OR OTHERWISE RECEIVE THE BENEFIT OF RACOS’S SERVICES. BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY OTHERWISE USING THE SERVICE, CUSTOMER IS ENTERING INTO A LEGALLY BINDING AGREEMENT WITH RACOS. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT IT IS DULY AUTHORIZED TO ACT ON BEHALF OF SUCH ENTITY, AND SUCH INDIVIDUAL IS OVER THE AGE OF 18. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, OR IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS NOT GREATER THAN THE AGE OF 18 YEARS OLD OR AUTHORIZED TO ACT ON BEHALF OF THE ENTITY THAT IS THE CUSTOMER, CUSTOMER MUST NOT COMPLETE THE ORDER PROCESS AND MUST NOT USE THE SERVICE.
1.1. Provision Generally. During the Subscription Term (as defined in Section 5.1), RACOS will provide Customer with access to RACOS’s proprietary service identified in the order form or Service signup process referencing this Agreement (the “Order Form”) that allows Customer and its authorized End Users to generate, edit, manage, and collaborate on scopes of work derived from project documents through RACOS’s hosted web application, together with any application programming interfaces, integrations, and related services RACOS makes available to Customer (collectively, the “Service”), using the RACOS Technology (defined below) in accordance with this Agreement.
1.2. Grant of Rights. Subject to this Agreement, RACOS hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except for permitted assignments as hereinafter described) right to access and use the Service in accordance with the Documentation (as defined in Section 7.1) for Customer’s internal business purposes during the Subscription Term (defined below), subject to the volume, usage, and any applicable quotas set forth in the Order Form. Under the rights granted to Customer in this Section, Customer may permit those of its employees and contractors whom Customer authorizes to access the Service on Customer’s behalf (“End Users”) to access and use the Service; provided that Customer shall be responsible for its End Users’ use of the Service and for their compliance with this Agreement. Where RACOS makes an application programming interface available to Customer, Customer’s use of that interface forms part of the Service and is subject to this Agreement and the Documentation. All rights not expressly granted to Customer are reserved by RACOS and its licensors. There are no implied rights. Customer may exercise the rights hereunder through one or more of its Affiliates; provided (a) Customer remains liable for any acts or omissions of all such Affiliates as though performed by Customer under this Agreement; and (b) all such Affiliates and Customer shall be jointly and severally liable for any and all liabilities that would exist of Customer for any breaches of this Agreement or acts or omissions by such Affiliates or Customer. “Affiliates” means, with respect to a party, any other entity that directly or indirectly, including through one or more intermediaries, controls, is controlled by, or is under common control with, such party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.3. Requirements. By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements: (a) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement; including entering into this Agreement on behalf of and binding a third party, if so applicable; (c) Customer has the right to provide or make available the Customer Data (as defined herein); and (d) Customer’s use of the Service will comply with all applicable laws, rules and regulations (“Applicable Laws”). In order to access and use the Service, Customer is responsible at its own expense for obtaining its own Internet access and any hardware and required software. Customer shall provide RACOS with such documentation, information, and certifications for RACOS to verify the above requirements.
1.4. Restrictions. Except in the course of using the Service in accordance with the Documentation as expressly permitted by this Agreement, Customer shall not (and shall not allow any third party to): (a) use the Service except as envisioned by the Documentation and for the Service’s normal operation or as specified herein; or (b) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service, RACOS Technology, or related Documentation, directly or indirectly, to benefit of any third party, except for End Users as contemplated under Section 1.2. Customer shall not, and shall not authorize any third party to: (i) use the Service or the RACOS Technology to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (ii) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (iii) use any unauthorized robot, spider, scraper or other automated means to access the Service or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service; (iv) use the Service to store or transmit any virus, worm, trap door, time bomb, trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, erase, or otherwise harm or interfere with any software, hardware, systems or data; or (v) use the Service in any way in violation of law, in violation of any third party’s agreements binding Customer, or in any way that misappropriates or violates any party’s intellectual property rights, proprietary rights, rights of publicity, rights of privacy or any other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases or contract rights. Customer shall keep all passwords and API keys provided to it safe and secure and shall be responsible for all use of the Service using passwords or API keys issued to Customer. Customer shall notify RACOS promptly after it becomes aware of any actual or suspected unauthorized access to or use of the Service. Without limiting any of its other rights or remedies, RACOS reserves the right to suspend access to the Service if RACOS reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension).
1.5. Customer Cooperation. Customer shall: (a) reasonably cooperate with RACOS in all matters relating to the Service; (b) respond promptly to any reasonable RACOS request to provide information, approvals, authorizations or decisions that are reasonably necessary for RACOS to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as RACOS may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
1.6. Data Protection. To the extent Customer Data includes personal data or personal information under applicable data protection or privacy laws (“Personal Data”), the parties acknowledge that Customer is the controller (or equivalent term under applicable law) and RACOS is the processor (or equivalent term under applicable law) with respect to such Personal Data, and RACOS will process such Personal Data solely to provide the Service as contemplated by this Agreement. Customer is solely responsible for (a) providing any legally required privacy notices to, and obtaining any legally required consents from, data subjects and other individuals whose Personal Data may be included in Customer Data, including any architects, engineers, or other project personnel identified in uploaded project documents, and (b) ensuring that Customer’s use of the Service and provision of Customer Data to RACOS complies with all applicable data protection, privacy, and electronic communications laws. RACOS will provide reasonable cooperation to Customer, at Customer’s expense to the extent such cooperation exceeds RACOS’s standard functionality, in responding to data subject requests and security incident notifications to the extent required by applicable law. Where the parties have executed a master services agreement that incorporates a data processing addendum, that addendum governs in place of this Section with respect to the processing it covers. RACOS’s processing of personal data in connection with its websites is described in its Privacy Policy available here. You agree that you have read and understand the Privacy Policy. Customer represents and warrants that it has provided and will provide all necessary privacy notices and has obtained and will obtain all necessary consents for the Customer Data it provides to RACOS. Customer is responsible for notifying RACOS in the event that any Customer Data stored, processed, or used by the Service must be deleted under applicable law.
1.7. Free Trials. RACOS may, at its option, make all or part of the Services available to you solely for limited evaluation purposes or beta usage and waive the Fees for use of the Services during a Free Trial Period. The “Free Trial Period” will end ninety (90) days after you enroll in any free trial of the Services or earlier at our or your election, unless otherwise agreed in writing by RACOS. You (and/or others affiliated or associated with you, including those employed by or representing the same entity or organization as you) may not enroll in any free trial of the Services multiple times in the same twelve (12) month period or create false or misleading accounts or registrations to extend or repeat free trials or circumvent Fees for the Services. By signing up for a Free Trial Period, you represent and warrant that this is the first Free Trial Period for you and/or others affiliated or associated with you during the prior twelve (12) month period, and if you breach this representation or warranty, RACOS may charge, and you will pay, the then-current Fees for the Services notwithstanding the Free Trial Period Fee waiver, without limiting RACOS’s other rights and remedies, including termination or suspension of your access and use rights and reasonable collection costs and interest for amounts not timely paid. RACOS’s aggregate liability to you, and your sole and exclusive remedy against RACOS, relating to any Free Trial Period are limited to $1.00 and/or early termination of the Free Trial Period, and the Services provided during the Free Trial Period are provided AS-IS and solely for non-commercial evaluation purposes. To the extent this Section conflicts with any other provisions of this Agreement, this Section shall control with respect to free trials.
In connection with providing the Service, RACOS and its licensors shall operate and support the hosted environment used by RACOS to provide the Service, including the RACOS Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation, and all other technology or information so used by RACOS. As used herein, “RACOS Technology” means all of RACOS’s proprietary technology (including software, hardware, products, processes, algorithms, data, user interfaces, know-how, techniques, designs and other tangible or intangible technical material) made available to Customer by RACOS in providing the Service, including any updates, modifications, improvements, and derivatives thereto and thereof.
RACOS acknowledges and agrees that, as between Customer and RACOS, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data to perform RACOS’s obligations in accordance with this Agreement and as otherwise expressly permitted in this Agreement. No right or license is granted hereunder to Customer under any RACOS trademarks, service marks, trade names or logos. Customer shall not remove any RACOS trademark, service mark, trade names or logo, or any proprietary notices or labels (including any copyright or trademark notices) (“Marks”) from the Service (except as otherwise agreed between Customer and RACOS in writing) or code files made available by RACOS to Customer; however, Customer’s implementation of the Service will not require displaying Marks to End Users. Customer acknowledges and agrees that, as between RACOS and Customer, all right, title and interest in and to the Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Service, excluding Customer Data), the RACOS Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by RACOS or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the RACOS Technology other than a limited right to use the Service in accordance with this Agreement.
4.1. Fees. Customer shall pay RACOS the fees (“Fees”) pursuant to the fee schedule and RACOS service plan set forth in the applicable Order Form, and make such payment in accordance with the instructions and schedule provided for by RACOS. Payment of Fees is due prior to your receipt of Services, and will be due either monthly or annually, depending on your payment schedule.
4.2. Increases. RACOS reserves the right to increase the Fees upon at least thirty (30) days’ advance notice (e-mail or otherwise) to Customer; provided, however, that Fee increases will not take effect until the start of the next Renewal Subscription Term.
4.3. Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added or other taxes, duties, and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service. Customer shall be solely responsible for all such taxes, duties, and charges (except for taxes imposed on RACOS’s U.S. income, employment related taxes, and real property taxes). If RACOS is required by the applicable taxing jurisdiction to charge Customer taxes for the provision of Services under this Agreement, RACOS shall include the corresponding tax amount on the applicable invoice. If any non-U.S. jurisdiction requires Customer to withhold taxes on payments to RACOS and remit such amount to the local taxing authority, the Customer agrees to gross-up the amounts due and payable to RACOS so RACOS is paid the full amount of the Fees contemplated.
4.4. Late Payments. Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under Applicable Law, calculated daily and compounded monthly. Customer shall reimburse RACOS for all reasonable and documented costs and expenses, including reasonable attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
4.5. Usage Limits. If your account type contains Service usage limitations, RACOS reserves the right to suspend or limit your usage of the Service in excess of those limits without payment of the amounts due for such additional usage.
5.1. Term; Automatic Renewal. Customer’s initial subscription term for the Service commences on the “Effective Date” set forth in the Order Form or the date otherwise indicated as the first date of the subscription for the Services on the Order Form and, unless sooner terminated as set forth herein, will continue for the period specified in the Order Form (the “Initial Subscription Term”). The Initial Subscription Term will automatically renew for successive one-year or monthly periods, as applicable, (each, a “Renewal Subscription Term”) at RACOS’s then-current rates unless either party gives the other party written notice of non-renewal at least 30 days prior to the end of the Initial Subscription Term or the Renewal Subscription Term then in effect. The Initial Subscription Term plus all Renewal Subscription Terms are referred to herein as the “Subscription Term”. Notices of non-renewal to RACOS shall be sent to legal@racos.io in accordance with Section 12.3 and will be effective on the last day of the then-current Subscription Term.
5.2. Termination for Breach. Either party may terminate this Agreement by written notice thereof to the other party, if the other party materially breaches this Agreement and, where such breach is curable, has not cured such breach within thirty (30) days’ receipt of written notice thereof.
5.3. Effects of Subscription Termination; Survival. Upon any termination or expiration of this Agreement: (a) all rights granted to Customer hereunder shall terminate and RACOS shall no longer provide access to the Service to Customer, (b) Customer shall cease using the Service and Documentation, and (c), except if Customer terminates in accordance with Section 5.2, Customer shall pay all Fees accrued and payable before the effective date of termination. Except if Customer terminates in accordance with Section 5.2, termination shall not relieve Customer’s obligation to pay all Fees accrued and payable before the effective date of termination. Any obligations that have accrued prior to termination shall survive termination of this Agreement. Sections 1.3, 1.4, and 3 through 12 shall survive termination or expiration of this Agreement. Any expiration of this Agreement will be considered a termination for the avoidance of doubt.
6.1. Data Generally. All account and billing information, user information, and all data, documents, and other content that Customer or its End Users submit, upload, or otherwise transmit through the Service (collectively, “Customer Data”) are and remain, as between Customer and RACOS, the property of Customer. RACOS agrees to protect Customer Data with no less than reasonable and appropriate administrative, technical, and physical data security safeguards taking into account the nature and sensitivity of the data. Customer hereby grants to RACOS a non-exclusive, royalty-free, worldwide license to (a) host, store, process, transmit, display, and analyze Customer Data solely to provide, maintain, support, and improve the Service to Customer during the Subscription Term; (b) use Customer Data to train, fine-tune, and evaluate machine-learning models used to provide the Service, including to detect and identify the layout of project documents and the location and general classification of areas and elements within them, and to generate scopes of work and related outputs derived from such Customer Data as contemplated by the Service; provided that RACOS shall not use Customer Data to train, fine-tune, or develop any model for the purpose of, or in a manner designed to, generate outputs that reproduce Customer’s project content for the benefit of any party other than Customer, and RACOS will not use Customer Data to train models on behalf of, or share model improvements derived from Customer Data with, any other RACOS customer in a manner that discloses Customer’s Confidential Information or Customer Data; and (c) generate and use Aggregated Statistics as described in Section 6.3. For clarity, RACOS will not publicly distribute or publicly display Customer Data, will not sell Customer Data, will not provide any other customer access to Customer Data, and will not disclose Customer Data to any third party except to subprocessors engaged to provide the Service (each bound by written obligations of confidentiality and non-use no less protective than those set forth in this Agreement) or as required by law. Any user-facing display of Customer Data will be limited to Customer’s authorized End Users within Customer’s environment. Nothing in this Agreement grants RACOS or any third party any right to construct, reconstruct, or reuse any project design; any such rights, if any, remain governed by Customer’s and applicable third parties’ underlying agreements. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility.
6.2. Additional Customer Responsibilities. Customer shall not upload or otherwise make available to RACOS or use in connection with the Service any Customer Data that: (a) violates this Agreement; (b) interferes with or disrupts the Service or servers or networks connected to the Service; (c) constitutes protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or any regulation, rule, or standard issued thereunder, or constitutes similarly protected sensitive personal information under any Applicable Law; or (d) violates any Applicable Law, including those regarding the export of technical data. Customer shall limit access to the Service to its authorized End Users. RACOS reserves the right, but has no obligation, to review any Customer Data, investigate any claim related to Customer Data, or take appropriate action if RACOS reasonably believes that such Customer Data will create liability for RACOS. Such actions may include removing or modifying Customer Data and exercising any indemnity and termination rights contained herein.
6.3. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, RACOS may monitor Customer’s use of the Service and collect and compile data and information related to that use in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”), together with other de-identified, aggregated, and derived data and insights (including concepts, benchmarks, and learnings) that do not identify and are not reasonably capable of re-identifying Customer, any End User, or any individual. As between RACOS and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by RACOS. Customer acknowledges that RACOS may compile Aggregated Statistics based on Customer Data. RACOS may make Aggregated Statistics publicly available and otherwise use them in compliance with applicable law, provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
7.1. Service Warranty. RACOS represents and warrants that the Service when used in accordance with the applicable end-user instructions and manuals (the “Documentation”) will conform to the Documentation in all material respects. RACOS does not warrant that it will be able to correct all reported defects, or that use of the Service will be uninterrupted or error free. RACOS makes no warranty regarding features or services provided by any third parties. RACOS retains the right to modify the Service and the RACOS Technology in its sole discretion. Customer’s sole remedy for RACOS’s breach of the warranty in this paragraph shall be that RACOS shall remedy the applicable error, or if RACOS is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the Fees prepaid for the Service for the remainder of the Subscription Term.
7.2. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1, RACOS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR, OR BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
8.1. Disclaimer of Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF DATA, LOST PROFITS OR REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICE ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT (INCLUDING ANY ATTACHMENTS, ADDENDUMS, EXHIBITS, OR AMENDMENTS RELATED THERETO); TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF THE SERVICES; FAILURE OF CUSTOMER’S INTERNET SERVICES, DOWNTIME, OR MAINTENANCE; HOWEVER CAUSED, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, RACOS’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT(INCLUDING ANY ATTACHMENTS, ADDENDUMS, EXHIBITS, OR AMENDMENTS RELATED THERETO), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO RACOS DURING THE PREVIOUS TWELVE (12) MONTHS OF THE THEN-CURRENT SUBSCRIPTION TERM.
8.3. Exclusions. THE LIMITATIONS OF LIABILITY IN SECTION 8.1 SHALL NOT APPLY TO CUSTOMER’S LIABILITY FOR: (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; (C) CUSTOMER’S LIABILITY ARISING FROM CUSTOMER’S BREACH OF CONFIDENTIALITY OBLIGATIONS IN SECTION 10; AND (D) CUSTOMER’S VIOLATION OF RACOS’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE).
8.4. Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT RACOS HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9.1. Claims Against Customer. RACOS shall defend any claim, suit or action against Customer and its directors, officers and employees (“Customer Indemnified Parties”) brought by a third-party to the extent based on an allegation that the Service infringes, misappropriates, or otherwise violates any intellectual property rights of such third party (each, a “Customer Claim”), and RACOS shall indemnify and hold Customer harmless, from and against damages, losses, liabilities and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim.
9.2. Claims Against RACOS. Customer shall defend, any claim, suit or action against RACOS and its directors, officers and employees (“RACOS Indemnified Parties”) brought by a third-party to the extent that such claim, suit or action is based upon any Customer Data or Customer or its users use of the Service in violation of this Agreement (“RACOS Claim”) and Customer shall indemnify and hold RACOS harmless, from and against Losses that are specifically attributable to such RACOS Claim or those costs and damages agreed to in a settlement of such RACOS Claim.
9.3. Indemnification Process. As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or RACOS Indemnified Party (the “Indemnitee”) will provide the indemnifying party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby); (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim; and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other party (not unreasonably withheld).
9.4. Exclusions. RACOS’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to: (a) misuse of the Service not strictly in accordance with the Documentation, RACOS’s instructions, and this Agreement; (b) any modification, alteration or conversion of the Service not created or approved in writing by RACOS; (c) any combination of the Service with any computer, hardware, software or service not provided by RACOS; (d) RACOS’s compliance with specifications or other requirements of Customer; or (e) any third-party data or Customer Data, including outputs of AI Services to the extent based upon such data. If the Service is or may be subject to a Customer Claim, RACOS may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; (ii) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any prepaid Fees for the Service associated with the then-current Subscription Term. RACOS’s obligations in this Section 9 shall be RACOS’s sole obligations, and Customer’s sole remedies, in the event of any intellectual property infringement or misappropriation claims, suits, or actions.
10.1. Definitions. “Confidential Information” means information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) hereunder during the Subscription Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. Receiving Party shall not have any obligations of confidentiality for any information that: (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, Receiving Party; (b) is rightfully in Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information; or (d) is rightfully obtained by Receiving Party from a third-party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both parties; (ii) Service and RACOS Technology shall be deemed Confidential Information of RACOS, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
10.2. General Obligations. Receiving Party shall, during the Subscription Term and thereafter, (a) not disclose Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of and as permitted by this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information from unauthorized use, access or disclosure in the same manner as Receiving Party protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) Receiving Party from disclosing Confidential Information to the extent required by Applicable Law, rule or regulation (including a court order or other government order); provided that Receiving Party provides Disclosing Party prior written notice of such disclosure, to the extent permitted, and reasonably cooperates with efforts of Disclosing Party to seek confidential treatment thereof, to the extent such cooperation is requested by Disclosing Party; or (ii) a party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such party, as applicable).
10.3. Return or Destruction. Except as otherwise expressly provided in this Agreement, Receiving Party will return to Disclosing Party, or destroy or erase, Confidential Information in its possession in tangible form, upon the termination of this Agreement; provided that: (a) Receiving Party may retain a copy of Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto; (b) Receiving Party may retain copies of Confidential Information solely to the extent required by law or by applicable professional standards which require such party to retain copies of its working papers; and (c) Receiving Party may retain Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
10.4. Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides RACOS with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), such Feedback shall not be considered Confidential Information of Customer, and RACOS may use, disclose, and exploit such Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
11.1. AI Services. Certain features of the Service utilize artificial intelligence, machine learning, or similar functionality (collectively, “AI Services”). RACOS’s rights to process, use, and store Customer Data in connection with the AI Services are set forth in Section 6.1, and nothing in this Section 11 expands them. Customer agrees and instructs that, in connection with providing the AI Services, RACOS may store and process Customer Data in countries or regions outside the location where the AI Services are originally used, and may share Customer Data with subprocessors engaged to provide the Service, each bound by written obligations of confidentiality and non-use no less protective than those set forth in this Agreement.
11.2. The AI Services are not intended to and shall not be used as a substitute for human review, and do not relieve Customer of its responsibility for, and RACOS shall not be liable for, Customer’s intended use of the AI Services. RACOS does not and cannot represent or warrant, and hereby disclaims any representations or warranties, including those that may be implied, that the AI Services (a) will be accurate or free from hallucinations or other errors, or (b) will accurately or completely reflect real-world conditions. Notwithstanding the foregoing, RACOS may remove Customer Data or other content from the Service if, in RACOS’s sole discretion, such content violates applicable law or a third party’s rights, or if a court, governmental authority, regulator, or law enforcement agency with appropriate jurisdiction so orders or requests.
11.3. Customer represents and warrants (a) it will not rely or allow its End Users to rely on AI Services outputs as a sole source of truth or factual information or solely rely on the AI Services for their intended purposes, or as a substitute for professional advice; (b) it will evaluate results of AI Services for accuracy and appropriateness for each applicable use case, including using human review as appropriate before using or sharing results of AI Services; (c) it will not use AI Services relating to a person for any purpose in a manner that could have a legal or material impact on that person, including without limitation in connection with making credit, educational or enrollment, employment, financial or lending, essential government service, housing, insurance, legal, healthcare, medical, or other important decisions about them; (d) due to the nature of AI Services, AI Services may not be unique and others may receive similar results, content, output, or services from the AI Services; and (e) Customer will not use or allow its End Users to use the AI Services to generate content that violates another’s rights, including, without limitation, an infringement of intellectual property rights, rights of publicity, or rights of privacy.
11.4. Customer shall ensure that at all times during the Subscription Term, Customer’s configuration and use of the AI Services shall (a) conform to the specifications set forth in the applicable Documentation, (b) comply with all Applicable Laws, and (c) comply with all license and use restrictions with respect to any third party software used by, or incorporated into, the AI Services.
11.5. The AI Services are not intended for use in, or in association with, the operation of any hazardous environments or critical systems that may lead to serious bodily injury or death or cause environmental or property damage. Customer is responsible for liability that may arise in connection with any such use.
12.1. Assignment. Customer may not assign this Agreement or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of RACOS. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each party’s successor and permitted assigns. Notwithstanding the foregoing, RACOS may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
12.2. Entire Agreement; Amendment. This Agreement along with the Order Form, the subscription arrangement chosen by the Customer, and/or the pricing and account terms agreed when Customer signs up for a subscription account level contains the complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. RACOS may modify this Agreement from time to time. RACOS will post the modified Agreement at the location where this Agreement is published, will update the “Last Updated” date above, and will give Customer at least thirty (30) days’ notice by email of any modification that materially and adversely affects Customer’s rights. A modification takes effect at the start of Customer’s next Renewal Subscription Term or, if no Subscription Term is then in effect, on the effective date stated in the posted Agreement. Customer’s continued use of the Service after a modification takes effect constitutes acceptance of the modified Agreement. If Customer does not agree to a modification that materially and adversely affects its rights, Customer’s sole remedy is to give notice of non-renewal under Section 5.1 before that modification takes effect. Any Order Form, and any separately signed agreement between the parties, may be amended only by a signed writing executed by an authorized representative of each party.
12.3. Notices. RACOS may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
12.4. Force Majeure. Except for payment obligations, neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party and uses reasonable efforts to overcome such circumstances.
12.5. Publicity. RACOS shall have the right to use Customer’s name and logo on client lists published on RACOS’s website and in marketing materials. RACOS may also announce the relationship hereunder in a press release.
12.6. Choice of Law. Any question, claim or controversy arising out of or related to this Agreement will be governed by and construed exclusively in accordance with the federal and state laws of the State of Florida, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
12.7. Relationship of the Parties. 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 or employment relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.8. Hosting Contractor. Customer acknowledges that RACOS uses, and the Service is hosted by a third-party hosting provider (“Hosting Contractor”) that uses third party server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs for the delivery of the Service (“Hosting Contractor Services”). Additionally, RACOS uses third-party service providers to help RACOS receive payments (“Payment Processors”) and provide other services. RACOS may change its Hosting Contractor and Payment Processor at any time. Customer’s use of the Service is subject to any restrictions imposed by the Hosting Contractor and Payment Processor and provided to Customer in writing in advance, as applicable. All other third-party services are made available to Customer subject to additional third-party license terms specified in the Services platform and related documentation if implemented by Customer following notice of such additional terms and documentation.
12.9. Waiver. No waiver by either party of any provision of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.10. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court or tribunal of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
12.11. Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.
12.12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.