This Agreement is entered into between RDG Filings, a division of Research Data Group, Inc. (“RDG”), a Nevada corporation, and the user accessing the RDG ThunderDome® Portal software and services (“Thunderdome® Services”). Said user on his or her own behalf and on behalf of any company or organization whose Access Credentials user has used to access the ThunderDome® Services (said user and company or organization hereinafter collectively, “Client”) agrees to be bound by all of the covenants, terms and conditions below. Unless the context otherwise requires, all references herein to Agreement shall include this Agreement and that certain EDGAR Conversion & Filings Portal, XBRL Tagging & Consultation and Related Services Agreement entered into between RDG and Client (as defined therein) (hereinafter, “Master Agreement”), which Master Agreement is hereby incorporated and made a part of this Agreement.
1. Authorization and Client Restrictions.
1.1. Authorization. RDG hereby authorizes Client to access and use, on a non-exclusive basis, and during the Term, the Thunderdome® Services and such RDG Materials as RDG may supply or make available to Client in accordance with the terms of this Agreement.
1.2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Thunderdome® Services, the RDG Materials or any Third Party Materials that are involved with the Thunderdome® Services. All right, title and interest in and to the Thunderdome® Services, any RDG Materials and any Third Party Materials are and will remain with RDG and the respective rights holders in the Third Party Materials.
1.3. Authorization Limitations and Restrictions.
1.3.1. Client shall not, and shall not permit any other Person, to access or use the Thunderdome® Services or RDG Materials except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, neither Client nor any person acting on behalf of Client shall:
188.8.131.52. copy, modify or create derivative works or improvements of the Thunderdome® Services or RDG Materials;
184.108.40.206. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Thunderdome® Services or RDG Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
220.127.116.11. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Thunderdome® Services or RDG Materials, in whole or in part;
18.104.22.168. bypass or breach any security device or protection used by RDG Materials or access or use the Thunderdome® Services or RDG Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
22.214.171.124. input, upload, transmit or otherwise provide to or through the Thunderdome® Services or RDG Materials, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
126.96.36.199. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Thunderdome® Services, RDG Systems or RDG’s provision of services to any third party, in whole or in part;
188.8.131.52. remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Thunderdome® Services or RDG Materials, including any copy thereof;
184.108.40.206. access or use the Thunderdome® Services or RDG Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other RDG client), or that violates any applicable law;
220.127.116.11. access or use the Thunderdome® Services or RDG Materials for purposes of competitive analysis of the Thunderdome® Services or RDG Materials, the development, provision or use of a competing software service or product or any other purpose that is to RDG’s detriment or commercial disadvantage; or
18.104.22.168. otherwise access or use the Thunderdome® Services or RDG Materials beyond the scope of the authorization granted under this Agreement.
2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
2.1. RDG has and will retain sole control over the operation, provision, maintenance and management of the Thunderdome® Services and any RDG Materials, including the: (i) RDG Systems and (ii) selection, deployment, modification and replacement of the Thunderdome® Services Software; and
2.2. Client has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Thunderdome® Services and RDG Materials by any Person by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Thunderdome® Services or RDG; (ii) results obtained from any use of the Thunderdome® Services or RDG Materials; and (iii) conclusions, decisions or actions based on such use.
RDG reserves the right, in its sole discretion, to make any changes to the Thunderdome® Services and RDG Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Thunderdome® Services, (ii) the competitive strength of or market for the Thunderdome® Services and (iii) the cost, efficiency or performance of the Thunderdome® Services.
4. Suspension or Termination of Thunderdome® Services.
RDG may suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Thunderdome® Services or RDG Materials, without incurring any resulting obligation or liability, if: (a) RDG receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires RDG to do so; or (b) RDG believes, in its good faith and sole discretion, that: (i) Client or any Authorized User has failed to comply with any term of this Agreement, or has accessed or used the Thunderdome® Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Thunderdome® Services, the XBRL Services, the EDGAR Services or the Ancillary Services; or (iii) this Agreement expires or is terminated.
5. Client Obligations.
5.1. Client Systems and Cooperation. Client shall at all times during the Term maintain and operate in good repair all Client Systems on or through which the Thunderdome® Services are accessed or used.
5.2. Effect of Client Failure or Delay: RDG is not liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Client Failure”).
6. Service Levels.
6.1. RDG will use commercially reasonable efforts to make the Thunderdome® Services available to Authorized Users over the internet and operating as it customarily operates at least ninety-nine and one half percent (99.5%) of the time. The foregoing covenant does not apply to: (a) any act or omission by Client or any Authorized User, or any use or access gained through Client’s or an Authorized User’s Access Credentials, that does not comply with this Agreement; (b) any Client Failure; (c) Client’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by RDG pursuant to this Agreement; (f) scheduled downtime; or (g) disabling, suspension or termination of the Thunderdome® Services pursuant to Section 4.
6.2. Service Level Failures and Remedies. In the event that RDG fails to maintain the covenanted service level set forth in Section 6.1, and such failure has a material adverse impact on Client’s ability to timely file as required by SEC regulations, RDG shall issue a credit to Client calculated based on the ratio of the amount of time in minutes that the Thunderdome® Services are not available relative to the amount of time in minutes that the Client used the Thunderdome® Services during the Service Period multiplied by the fees due or paid for the quarter in which such material adverse impact occurred (each a “Service Credit”), subject to the following:
6.2.1. RDG has no obligation to issue any Service Credit unless (i) Client reports the Service Failure to RDG in writing immediately on becoming aware of it; and (ii) requests such Service Credit in writing within ten days of the Service Failure; and
6.2.2. In no event will a Service Credit for any Service Period exceed twenty five percent (25%) of the total Fees that would be payable for that Service Period if no Service Failure had occurred.
Any Service Credit due to Client will be issued in the quarter following the quarter in which the material adverse impact occurred. This Section 6.2 sets forth RDG’s sole obligation and liability and Client’s sole remedy for any such material adverse impact as a result of the Thunderdome® Services not being available.
6.3. Scheduled Downtime. RDG will use commercially reasonable efforts to schedule downtime for routine maintenance of the Thunderdome® Services outside of regular business hours and to give Client at least 48 hours prior notice of all scheduled outages of the Thunderdome® Services.
6.4. Service Support. RDG shall provide Client with technical assistance and consultation service via telephone and e-mail during the hours of 8:00 a.m. to 7:00 p.m. Eastern Time, Monday through Friday (excepting federal holidays). RDG shall respond to any Client request for technical assistance and consultation service within one (1) business day of Client request. In the event of an emergency not during Standard hours, Client may request technical support by calling the RDG Filings Emergency Help Desk. An “emergency” shall be deemed to include (i) lack of availability of the Thunderdome® Services (not including events which are the result of data transmission faults originating from Client equipment or Client’s local internet connectivity) or (ii) any event which poses a security risk to the RDG Systems or the Thunderdome® Services or (iii) a malfunction in the Thunderdome® Services.
6.5. Limitation on Scope of Support Services: RDG’s technical support is for issues related to functionality Thunderdome® Services and limited only to documents generated by the Thunderdome® Services and shall not include, for example, legal or compliance guidance, XBRL tagging consultation, accounting principles discussion, or issues relating the interpretation or application of US GAAP or other accounting principles or standards review services, interpretation of Securities & Exchange Commission Rules, or proofreading of work. RDG is not responsible for technical support for documents created by any third parties or using any software platform or program other than the Thunderdome® Services.
7.1. RDG Systems and Security Obligations. RDG will employ security measures in accordance with applicable industry practice.
7.2. Prohibited Data. Client acknowledges that the Thunderdome® Services are not designed with security and access management for storage or processing of Personal Information. Client shall not, and shall not permit any Authorized User or other Person to, provide any Personal Information to, or process any Personal Information through, the Thunderdome® Services, the RDG Systems or any RDG Personnel.
7.3. Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client or any Authorized User in connection with the Thunderdome® Services; (c) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services (”Client Systems”); (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Thunderdome® Services and RDG Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, with or without Client’s knowledge or consent.
7.4. Access and Security. Client shall employ all security procedures and other safeguards necessary to (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Thunderdome® Services; and (b) control the content and use of Client Data, including the uploading or other provision of Client Data for Processing by the Thunderdome® Services.
7.5. Data Backup The Thunderdome® Services do not replace the need for Client to maintain regular backups and redundant data archives for all Client Data. RDG performs hourly incremental backups and weekly full backups of its data systems but such backups may not be adequate to ensure that all Client Data would be accessible or retrievable in the event such Client Data is lost, damaged or destroyed.
8. Intellectual Property Rights.
8.1. Thunderdome® Services and RDG Materials. All right, title and interest in and to the Thunderdome® Services and RDG Materials, including all Intellectual Property Rights therein, are and will remain with RDG. Client has no right, license or authorization with respect to any of the Thunderdome® Services and RDG Materials except as expressly set forth in Section 1. All other rights in and to the Thunderdome® Services and RDG Materials are expressly reserved by RDG and any applicable third-party licensors.
8.2. Customer Data. As between Client and RDG, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3. Consent to Use Client Data. Client hereby irrevocably grants to RDG and any of its subcontractors all such rights and permissions in or relating to Client Data: (a) as are necessary or useful to provide the Thunderdome® Services and any related or additional Services; and (b) as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
9. Mitigation for Potential Violation of Third-Party Intellectual Property Right.
If any of the Thunderdome® Services or RDG Materials are, or in RDG’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Thunderdome® Services or RDG Materials is enjoined or threatened to be enjoined, RDG may, at its option and sole cost and expense:
9.1. Obtain the right for Client to continue to use the Thunderdome® Services and RDG Materials as contemplated by this Agreement;
9.2. modify or replace the Thunderdome® Services and RDG Materials, in whole or in part, to seek to make the Thunderdome® Services and RDG Materials (as so modified or replaced) non-infringing, while providing substantially equivalent features and functionality, in which case such modifications or replacements will constitute Thunderdome® Services and RDG Materials, as applicable, under this Agreement; or
9.3. by written notice to Client terminate this Agreement with respect to all or part of the Thunderdome® Services and RDG Materials, and require Client to immediately cease any use of the Thunderdome® Services and RDG Materials or any specified part or feature thereof without having any obligation to Client to refund any fees or expenses paid. THIS SECTION 9.3 AND SECTION 5.3 IN THE MASTER AGREEMENT SETS FORTH CLIENT’S SOLE REMEDIES AND RDG’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE THUNDERDOME® SERVICES AND RDG MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.