Terms & Conditions
Effective: September 16, 2022
IMPORTANT – Please carefully read this Terms of Service Agreement (this “Agreement”), which governs the access and use of the RFGraph proprietary hosted software platform (the “Platform”) and any related services, content, and/or materials made available in connection with the Platform or use thereof (such services, content and/or materials together with the Platform, collectively, the “RFGraph Service”). This Agreement is a legally binding contract between RFGraph, Inc., a Delaware corporation (hereinafter, “RFGraph”) and the individual, business, company, organization and/or or entity (hereinafter, the “Customer”) specified on the account registered by or on behalf of such Customer to obtain access to the RFGraph Service (the “Account”).
BY REGISTERING AN ACCOUNT, CLICKING “I ACCEPT”, OR OTHERWISE USING OR ACCESSING THE RFGRAPH SERVICE IN ANY MANNER: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); (2) YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT; AND (3) YOU AGREE THAT CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH RFGRAPH, INC., A DELAWARE CORPORATION.
IF YOU AND/OR THE CUSTOMER DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE SUCH AUTHORITY, DO NOT REGISTER AN ACCOUNT OR OTHERWISE ACCESS OR USE THE RFGRAPH SERVICE (OR ANY PART THEREOF). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT CUSTOMER ACCEPTS THIS AGREEMENT AS SET FORTH ABOVE.
1. ACCESS AND USE OF RFGRAPH SERVICE
1.1. Accounts. In registering an Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date information that is true, accurate, current, up to date, and complete. Customer agrees that it will not, and will not permit any Authorized User or other third party to create an Account or sign up to access the RFGraph Service using a false identity or fictitious name or information. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s and its Authorized Users’ password for the Account. Customer is solely responsible for any activity originating from the Account, including, without limitation, any of its Authorized User Accounts, regardless of whether such activity is authorized by Customer. Customer agrees to notify RFGraph immediately of any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.
1.2. Access to the Platform. Subject to the terms and conditions of this Agreement (including payment of applicable fees), RFGraph grants to Customer a non-exclusive, non-sublicensable, non-transferable limited right during the term of this Agreement to access and use, and, if applicable, permit Customer’s employees and contractors (hereinafter, “Authorized Users”) to access and use, the Platform, over the internet, solely for Customer’s own internal non-commercial purposes, in accordance with this Agreement and the then-current technical user manuals, documentation for the RFGraph (the “Documentation”), and subject to any applicable usage parameters or restrictions specified in the Documentation or by RFGraph in writing regarding the scope of use of the RFGraph Service.
1.3. Restrictions. Customer acknowledges that the RFGraph Service embodies, contains, and constitutes valuable trade secrets of RFGraph. Accordingly, Customer agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to (a) use or allow access to the RFGraph Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable usage parameters or restrictions; (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the RFGraph Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement; (c) access or use the RFGraph Service (or any part or component thereof) for the purpose of developing competitive products or services; (d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Platform; (e) use the RFGraph Service (or any part thereof) in a way, including, but not limited to, storing, transmitting, or uploading, any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; (f) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of RFGraph or its licensors and/or suppliers on or within the RFGraph Service and/or Documentation; (g) interfere with or disrupt the integrity or performance of the RFGraph Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the RFGraph Service; (h) attempt to gain unauthorized access to the RFGraph Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by RFGraph, in the RFGraph Service; (i) frame or utilize framing techniques to enclose the RFGraph Service or any portion thereof; (j) use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the RFGraph Service, content, and/or the personal information of others without RFGraph’s prior written permission or authorization; (k) use the RFGraph Service to store or transmit any malicious or unsolicited code or software; (l) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; or (m) use the RFGraph Service (or any part thereof), or transmit Customer Materials (as defined in Section 1.4 below), in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations. Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Customer.
1.4. Customer Materials. Subject to the licenses granted herein, as between RFGraph and Customer, Customer shall retain all right, title, and interest in and to (a) any design files created and/or generated by Customer and/or its Authorized Users through the Platform (the “Customer Designs”), copies of which may be exported and downloaded in PDF format through the Platform by Customer at any time during the term of this Agreement, and (b) any content, data and other information provided, transmitted, uploaded, submitted, and/or otherwise made available by Customer and/or any Authorized Users in connection with the use of the RFGraph Service (“Customer Data”). For the avoidance of doubt, Customer Data does not include Operational Metrics (as defined in Section 1.5 below). Customer hereby grants to RFGraph, during the term, a worldwide, royalty-free, non-exclusive license to host, process and use Customer Designs and Customer Data (collectively, the “Customer Materials”), including through the use of subcontractors, solely to the extent necessary to provide Customer the RFGraph Service and other services hereunder. Customer represents and warrants that: (i) Customer or its licensors own all right, title, and interest in and to the Customer Materials; (ii) Customer has all necessary rights and/or authorizations to grant RFGraph the licenses to Customer Materials contemplated by this Agreement; and (iii) the Customer Materials (nor any part thereof) violates this Agreement, any applicable laws, or any third party’s intellectual property, privacy, or other right. Any personally identifiable data provided to, or collected by, RFGraph in connection with Customer’s and/or its Authorized Users’ use of the RFGraph Service shall only be used in accordance with this Agreement and RFGraph’s Privacy Notice available at rfgraph.com/privacy.
1.5. Operational Metrics. RFGraph monitors and collects anonymized statistics, metrics, analytics, and data regarding the performance and operation of the Platform that RFGraph collects in connection with the use of the RFGraph Service by Customer and/or its Authorized Users, and other operational and technical metrics necessary to manage and perform the Platform and other services provided hereunder (collectively, “Operational Metrics”) for its own business purposes, such as improving, testing, and maintaining the RFGraph Service, and developing additional products and services. Customer grants to RFGraph a non-exclusive, irrevocable, transferable, worldwide, and royalty-free license to collect, analyze and use Operational Metrics relating to its delivery of the RFGraph Service, that are derived from, or related to, Customer Data for RFGraph’s business purposes; provided that, RFGraph may only publicly distribute Operational Metrics in aggregate, non-personally identifiable form that cannot be used to identify Customer or any individual Authorized User.
1.6. Proprietary Rights. RFGraph or its licensors retain all right, title and interest in and to the RFGraph Service, Platform, and Documentation, including, all materials, graphics, user and visual interfaces, images, code, applications, and text, embodied in, or comprising the RFGraph Service, Platform, and/or Documentation, as well as the design, structure, selection, coordination, expression, “look and feel” and arrangement of the Platform and/or Documentation, and their content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the RFGraph Service, Platform, and/or Documentation (but, excluding in each case, any Customer Materials incorporated therein), and any and all modifications, updates, enhancements and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by RFGraph. To the extent Customer and/or any Authorized User provides any suggestions and feedback to RFGraph regarding the functioning, features, and other characteristics of the RFGraph Service (or any part or component thereof) or other materials or services provided or made available by RFGraph hereunder (“Feedback”), Customer hereby grants RFGraph a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully- transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s and its licensors’ intellectual property rights to use and exploit such Feedback in any manner and for any purpose.
2. FEES & PAYMENT TERMS
2.1. Fees. Customer shall pay the applicable fees to use the RFGraph Service set forth in the electronic or written order form entered into between RFGraph and Customer (each, an “Order Form”) based on the service plan (i.e., monthly or annually) selected by Customer (the “Service Term”). RFGraph reserves the right, at any time, to increase the fees payable hereunder, and/or change, update, or modify the RFGraph’s pricing and/or payment terms; provided that, any increase in fees applicable to Customer shall not take effect until the start of the next Service Term.
2.2. Trial Period. If you have obtained the RFGraph Service on a trial-basis, and unless otherwise agreed in writing between Customer and RFGraph, there will be no fees payable for the use of the RFGraph Service for a period of thirty (30) from the date Customer submits the Order Form to purchase access to the RFGraph Service or such other period expressly agreed to in writing by RFGraph (the “Trial Period”). Customer acknowledges and agrees that upon expiration of the Trial Period, the Service Term selected by Customer will automatically start, and Customer will automatically be charged by RFGraph for the fees due and payable for the full Service Term in accordance with this Section 2, unless Customer terminates this Agreement and ceases access to the RFGraph Service prior to the end of the Trial Period in accordance with Section 3.2. If Customer has not provided payment information at the time the trial version was obtained, and has not otherwise purchased access to the RFGraph Service prior to the expiration of the Trial Period, this Agreement, and Customer’s and its Authorized Users’ access to the RFGraph Service will automatically terminate (without the requirement of providing any termination notice).
2.3. Payment Terms. Unless otherwise set forth in the applicable Order Form and/or otherwise expressly agreed in writing by RFGraph all fees are due and payable in advance of each Service Term (including any renewal thereof), and will be automatically billed to the credit card, or other payment method designated by Customer in the Order Form or otherwise specified in Customer’s Account (the “Payment Method”). Customer represents and warrants that it has the legal right and authority to use the Payment Method provided by Customer hereunder. Customer hereby authorizes RFGraph and its third party payment processors to bill and charge the Payment Method for the applicable fees due and payable by Customer hereunder and any applicable taxes and any other charges that Customer may incur in connection with the use of the RFGraph Service, in accordance with the billing terms in effect at the time a fee or charge is due and payable. To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means. In addition, if payment is not received or cannot be charged to Customer for any reason in advance, RFGraph reserves the right to suspend or terminate Customer’s and its Authorized User’s access to the RFGraph Service and/or terminate this Agreement. All fees are listed and payable in United States Dollars (USD). ALL FEES ARE NON-REFUNDABLE, NON-RETURNABLE AND NON-CANCELLABLE.
2.4. Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on RFGraph’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the RFGraph Service (or any part thereof), or performance of any services by RFGraph hereunder.
3. TERM AND TERMINATION
3.1. Service Term & Automatic Renewal. This Agreement commences on the Effective Date and will remain in effect during the Trial Period (if applicable) and for the Service Term (including any renewal thereof), unless earlier terminated in accordance with this Agreement. Subject to Section 2.2, Customer acknowledges and agrees that the Service Term will automatically start following the Trial Period. Each Service Term shall automatically renew for successive periods equal to the selected Service Term, unless either party provides the other party with written notice of non-renewal or termination prior to the expiration of the then-current Service Term.
3.2. Termination. Customer may terminate this Agreement by providing written notice of termination to RFGraph by email at firstname.lastname@example.org and ceasing, and ensuring all Authorized Users cease, all use of the RFGraph Service. Customer acknowledges and agrees that notwithstanding any termination of this Agreement, the fees are non- refundable and non-cancellable. At any time, RFGraph may (a) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the RFGraph Service (or any part thereof), or (b) terminate this Agreement with respect to Customer if RFGraph, in good faith, believes that Customer and/or any Authorized User has used the RFGraph Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules.
3.3. Effects of Termination. Upon termination of this Agreement for any reason, all outstanding fees immediately becoming due and payable, including, without limitation, any fees due and payable for the remainder of the then-current Service Term, and Customer’s and its Authorized Users’ right to access and use the RFGraph Service will automatically terminate. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that upon expiration or termination of this Agreement, for any reason, RFGraph will have no obligation to retain the Customer
Designs, and Customer is solely responsible for exporting and downloading the Customer Designs prior to expiration or termination of this Agreement. Sections 1.3, 1.4, 1.5, 1.6, 2, 3.3, 3.4, and 4 through 12 (inclusive) will survive the termination or expiration of this Agreement.
3.4. Changes and Modifications. RFGraph reserves the rights to either temporarily or permanently modify, suspend or discontinue the RFGraph Service (or any part thereof) with or without notice and Customer agrees that RFGraph will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the RFGraph Service (or any part thereof).
THE RFGRAPH SERVICE, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY RFGRAPH HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND. RFGRAPH EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. RFGRAPH DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE RFGRAPH SERVICE (OR ANY PART THEREOF), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY RFGRAPH: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY PRODUCTS OR SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.
5. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RFGRAPH BE LIABLE OR OBLIGATED, WITH RESPECT TO THIS AGREEMENT, THE RFGRAPH SERVICE (OR ANY PART THEREOF), AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY RFGRAPH, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF RFGRAPH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS GREATER THAN THE FEES PAID OR PAYABLE BY CUSTOMER TO RFGRAPH UNDER THE APPLICABLE ORDER FORM FOR THE RFGRAPH SERVICE GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100.00); (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (C) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS SECTION 5 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT RFGRAPH WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Customer shall indemnify, defend, and hold RFGraph and its officers, directors, shareholders, employees, contractors, agents, successors and assigns, harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to: (a) Customer’s and/or any Authorized Users’ breach of this Agreement; (b) any Customer Materials, and/or any allegations that any Customer Materials or Customer’s and/or any Authorized Users’ activities in connection with, or use of, the RFGraph Service (or any part thereof), violate any applicable laws, rules or regulations; and/or (c) Customer’s gross negligence, fraudulent misrepresentation or willful misconduct. RFGraph shall promptly notify Customer in writing of such action, give Customer sole control of the defense thereof and any related settlement negotiations, and, at Customer’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of RFGraph or requires RFGraph to contribute to the settlement without RFGraph’s prior written consent. RFGraph may participate and retain its own counsel at its own expense.
Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”). Without limiting the foregoing, Confidential Information will include: (1) with respect to RFGraph, the Documentation, Feedback, and any non-public technical and business information regarding the RFGraph Service, including, but not limited to, the Platform, Documentation, and the fees payable hereunder, and/or any other RFGraph products and services, and (2) with respect to Customer, the Customer Materials. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for the purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Confidential Information shall not include information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party, or its employees and contractors, has become, generally available to the public; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under this Section to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section.
8. GOVERNING LAW; VENUE
This Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of California, without reference to its choice of law rules to the contrary. This Agreement (including without limitation, the Platform and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco County, California, in connection with any action arising out of or in connection with this Agreement. Notwithstanding the foregoing, RFGraph may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country, in the event of any actual or alleged violation of RFGraph’s intellectual property rights or Confidential Information.
9. GOVERNMENT RIGHTS
The Platform is provided under this Agreement is a commercial computer software program developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), the Platform licensed in this Agreement is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.
10. EXPORT CONTROL
Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Platform. Customer agrees that it will not export or re-export the Platform (or any part thereof) without the appropriate United States or foreign government licenses or permits.
11. MODIFICATIONS TO THIS AGREEMENT
RFGraph reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted at rfgraph.com/terms. Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above. If RFGraph makes any material changes to this Agreement, RFGraph will provide reasonable prior notice to Customer of these changes by sending a notification to the email address RFGraph has on file for Customer, or, if RFGraph does not have an email address on file, by posting a prominent notice on RFGraph’s website rfgraph.com and/or through the user interface of the Platform. Material changes to this Agreement will become effective on the date set forth in the notice. It is Customer’s responsibility to regularly visit and review this Agreement for updates, changes and modification. If Customer does not agree to any updates or modifications to this Agreement, Customer must terminate its Account as set forth in Section 3.2 above and cease all use and access of the RFGraph Service. Customer’s and/or any of its Authorized Users’ continued access or use of the RFGraph Service (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer’s acceptance of the revised Agreement.
12.1. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.
12.2. Notices. All notices permitted or required to be sent to RFGraph under this Agreement shall be in writing and sent by personal delivery, email, or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email. Notices shall be sent to RFGraph in writing to: RFGraph, Inc., 3001 Bridgeway ste k, Sausalito, CA 94965, with a copy sent via email at: email@example.com; Subject Line: Legal. Except as otherwise set forth herein, all notices to Customer hereunder shall be sent via email to Customer’s email address specified in the Account.
12.3. Consent to Electronic Notices. Customer consents to receiving electronic communications from RFGraph via email or through the user-interface of the Platform, which may include notices about applicable fees and charges, transactional information and other information concerning or related to Customer’s use of the RFGraph Service. These electronic communications are part of Customer’s relationship with RFGraph and Customer receives them as part of Customer’s access and use of the RFGraph Service. Customer agrees that any notices, agreements, disclosures or other communications that RFGraph sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.
12.4. Assignment. Customer may not assign its rights or obligations under this Agreement without RFGraph’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void. RFGraph may freely assign or transfer this Agreement hereunder without Customer’s consent and RFGraph may delegate the performance of any services hereunder to its affiliates, employees, contractors, and subcontractors.
12.5. Entire Agreement. This Agreement, together with any and all Order Forms entered into hereunder, and any other policies or terms and condition referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof. Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.
QUESTIONS. Please feel free to contact RFGraph at firstname.lastname@example.org if you have any questions about this Agreement.