Terms of Use

Revenue Reverb, Inc.

TERMS AND CONDITIONS

Last Updated: April 05, 2023

These are the terms and conditions (these “Terms”) that govern access to and use of the Revenue Reverb Platform.

Definitions.Capitalized terms used in these Terms shall have the meanings identified below in this Section 1:

1. Agreement means these Terms, the Order Forms, and the Revenue Reverb Privacy Policy, as well as any exhibits or attachments to any of the foregoing.
2. Authorized User means Customer (if Customer is an individual person) and the employees of Customer who Customer authorizes to access the Revenue Reverb Platform for Customer’s internal business purposes. In addition, the term “Authorized User” also shall refer to participating customers and/or other sales agents of Customer, and unless expressly provided otherwise in the applicable Order Form, any such Authorized User who accesses and uses the Revenue Reverb Platform shall be eligible to be enlisted by Revenue Reverb in the Referral Reverb Program Marketplace. All Authorized Users shall use the Revenue Reverb Platform in accordance with the Agreement.
3. Collected Data means data which is publicly available and which is collected by the Revenue Reverb Platform, including, without limitation, information relating to Customer’s products, product descriptions, specifications, and the price of Customer’s products.
4. Confidential Information means nonpublic proprietary information of Revenue Reverb or Customer, and any third party information that Revenue Reverb or Customer agree to treat as confidential, which is either designated in writing as “confidential” or otherwise is of such a nature that it is reasonably obvious the information should be considered to be confidential; provided, that notwithstanding the above, all computer code that forms the basis of the Revenue Reverb Platform, the Revenue Reverb Technology and the Embed Code shall be considered “Confidential Information” of Revenue Reverb. In addition, with respect to Customer, all compilations of Customer’s products, prices, referral incentives, referral fees payable to Revenue Reverb, product descriptions, specifications, manuals, methods, processes, designs, plans, employee information, customer information, sales agent information, supplier information, and financial information that is provided by Customer to Revenue Reverb shall be considered to be “Confidential Information” of Customer. Notwithstanding the foregoing, no information shall be deemed to be “Confidential Information” for purposes of the Agreement to the extent that the receiving party can establish with competent evidence that such information (i) was known to the receiving party prior to receipt from the disclosing party and not otherwise subject to an obligation of confidentiality to the disclosing party; (ii) was generally known to the public (including by being accessible on the Internet) prior to receipt from the disclosing party; (iii) becomes generally known to the public through no fault or omission of the receiving party; or (iv) was received by the receiving party in good faith from a third party who is not subject to an obligation of confidentiality. For purposes of clarification, Collected Data shall not be deemed to be “Confidential Information”, yet Revenue Reverb’s ability to use such Collected Data shall be limited by Section 3.b.
5. Customer means the person or entity that has entered into a currently effective Order Form with Revenue Reverb.
6. Documentation means, with respect to the Revenue Reverb Platform and /or to each Revenue Reverb Service, the user documentation that Revenue Reverb provides or makes available to Customer (including future updates thereto).
7. Embed Code means software code which may be provided by Revenue Reverb to Customer in connection with the provision of the Revenue Reverb Platform, and which, when embedded by Customer in a web page or mobile application, enables such web page or mobile application to support and interact with the Revenue Reverb Platform.
8. Intellectual Property Rights means any and all now known or hereafter known or existing patents, copyrights, trademarks, trade secrets, Confidential Information or other intellectual property rights and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing, including moral rights).
9. Order Form has the meaning set forth in Section 2.a. For an Order Form to be effective, it must be accepted by Revenue Reverb (including acceptance by electronic means). Each Order Form shall be a part of and shall be governed by the Agreement. If any terms of an Order Form directly conflict with these Terms (for the avoidance of doubt, where an Order Form includes additional or more specific terms and conditions with respect to a concept addressed generally in these Terms, no conflict shall be deemed to exist), the terms of the Order Form shall take precedence for the portion of the Revenue Reverb Services provided under the applicable Order Form, but such conflicting terms shall not affect the Agreement generally or any other Order Form.
10. Order Form Term has the meaning set forth in Section 7.a.
11. Revenue Reverb Platform means the Revenue Reverb Website and all of Revenue Reverb’s mobile, tablet or other applications, as well as any application program interfaces related to any such applications, and all of the Revenue Reverb Services that are offered by Revenue Reverb via the Revenue Reverb Website and/or such applications, in each case as the Revenue Reverb Website, such applications and/or the Revenue Reverb Services may be updated and/or revised from time to time. In each instance that the term “Revenue Reverb Platform” is used in these Terms, such term shall be deemed to apply to the applicable portion(s) of the Revenue Reverb Platform.
12. Referral ReVerb Program Marketplace, or other derivative from time to time developed by Revenue Reverb, means the online marketplace offered by Revenue Reverb where users may be offered opportunities to participate in the referral program powered by the Revenue Reverb Platform or other referral program opportunities.
13. Revenue Reverb Privacy Policy means Revenue Reverb’s privacy policy, which can be found here.
14. Revenue Reverb Services means the SaaS services provided by Revenue Reverb to Customer under these Terms (and shall include, without limitation, future updates and versions of such Revenue Reverb SaaS services), and subject to Revenue Reverb and Customer entering into an effective Order Form, pursuant to which Revenue Reverb will enable Customer to provide a customizable referral reward program for Customer’s designated Authorized Users (whether employees, sales agents or customers), where Customer may provide to such Authorized Users commissions, discounts, credits and/or other incentives for qualified referrals which lead to completed sales of Customer’s products and/or services (and pursuant to which Customer shall pay to Revenue Reverb a designated percentage of revenue resulting from such completed sales).
15. Revenue Reverb Technology means any of Revenue Reverb’s technology, software, library of codes, processes, tools, and business methods used to provide the Revenue Reverb Platform, including the Embed Code.
16. Revenue Reverb Website means the website (currently located at www.RevenueReverb.com or any successor website), including all subdomains and any other websites through which Revenue Reverb makes the Revenue Reverb Services available from time to time.
17. Service Level Agreement has the meaning set forth in Section 2.b(ii).
18. Term of the Agreement has the meaning set forth in Section 7.a.
19. Terms has the meaning set forth in the introductory paragraph.

Revenue Reverb Platform (Access and Use).
1. Scope of Agreement. As described below in more detail, you may subscribe to use the Revenue Reverb Platform pursuant to one or more order forms that are submitted by you to Revenue Reverb (each order form that is accepted by Revenue Reverb, an “Order Form”). By using the Revenue Reverb Platform you unconditionally agree to be bound by the Agreement. Revenue Reverb may modify or update either the Revenue Reverb Platform, these Terms, or the Revenue Reverb Privacy Policy from time to time in its sole discretion. Your continued use of the Revenue Reverb Platform after any such change constitutes your acceptance of such change. For this reason, we encourage you to review these Terms and the Revenue Reverb Website regularly. If you do not agree to any of such changes to the Revenue Reverb Platform and/or these Terms, do not use or access (or continue to use or access) the Revenue Reverb Platform. As used in the Agreement, the terms “you” and “your” applies to Customer, all Authorized Users of Customer, and all others who access the Revenue Reverb Platform on Customer’s behalf or through Customer’s account.
2. Right to Access and Use. Subject to the terms and conditions contained in the Agreement, and as specified in each Order Form, Revenue Reverb will provide to Customer and its Authorized Users the limited, non-exclusive, non-transferable right to access (including any access protocols necessary to exercise such right) and use the Revenue Reverb Platform and the related Documentation during the applicable Order Form Term. Any Order Form may be amended by the written agreement of both Customer and Revenue Reverb (which may be accomplished via electronic means).
  1. Installation. Unless otherwise specified in the applicable Order Form, neither Customer nor any Authorized User should require any installation or implementation services from Revenue Reverb to be able to use the Revenue Reverb Platform as contemplated under these Terms or the applicable Order Form; provided, that Customer and each Authorized User is responsible for providing, at Customer’s or such Authorized User’s sole cost and expense, generally available computer hardware, internet access, power and web browsers and other items generally required to access and use the Internet.
  2. Support Services. Revenue Reverb will provide the support services set forth in Exhibit A (the “Service Level Agreement”), and shall conduct training sessions to Customer as set forth in the applicable Order Form (though Customer shall be responsible for all of its own travel, living and other expenses associated with such training). At the request of the one (1) Customer primary technical contact or the one (1) Customer back-up technical contact to be designated in writing by Customer, Revenue Reverb will provide the following support services to Customer:
    1. Electronic Support: Revenue Reverb will provide reasonable consultation and support over the Internet regarding the operation of the Revenue Reverb Platform, including both technical and user issues.
    2. Error Correction: If Customer encounters a material failure of the Revenue Reverb Platform to comply with the specifications set out in the applicable Documentation, and if Customer gives Revenue Reverb notice specifying the material failure within a commercially reasonable period of time after discovering such material failure, then Revenue Reverb shall use commercially reasonable efforts to verify the cause of the problem, and if the error is due to any act or omission of Revenue Reverb, Revenue Reverb’s sole obligation shall be to use its commercially reasonable efforts to correct the reported problem. If Revenue Reverb is unable to remedy the material failure within a commercially reasonable amount of time, Revenue Reverb shall, as Customer’s sole remedy for such material failure, refund the fees Customer paid for the non-conforming portion of the Revenue Reverb Platform, equitably pro-rated based upon the unused portion of the pre-paid term for such non-conforming portion of the Revenue Reverb Platform.
3. Service Rules, Guidelines and Restrictions. Customer shall have the right to use the Revenue Reverb Platform and Documentation solely for Customer’s internal business purposes, and shall not allow third parties (other than Authorized Users) to gain access to or use the Revenue Reverb Platform. Customer shall not use the Embed Code, the Revenue Reverb Platform, or any information obtained through the Revenue Reverb Platform for any unlawful or unauthorized purpose. In addition, Customer (and Customer’s Authorized Users) shall not use the Revenue Reverb Platform to: (i) track or collect information in a manner that violates Customer’s privacy policies or is otherwise illegal; (ii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (iii) interfere with or disrupt the integrity or performance of the Revenue Reverb Platform or the data contained therein; (iv) attempt to gain unauthorized access to the Revenue Reverb Platform or the Revenue Reverb Technology; or (v) interfere with another user’s use and enjoyment of the Revenue Reverb Platform.
Proprietary Rights.
1. Reservation of Rights. Revenue Reverb and its licensors own all right, title and interest in and to the Revenue Reverb Platform, the Documentation, the Embed Code, the Revenue Reverb Technology, and other Revenue Reverb Intellectual Property Rights, and subject to the limited rights expressly granted under the Agreement, Revenue Reverb reserves all rights, title and interest therein. No rights are granted to Customer under the Agreement other than as expressly set forth in the Agreement. Except as expressly set forth in the Agreement, Customer shall not (i) modify or copy any portion of the Revenue Reverb Platform, the Embed Code or the Documentation or create any derivative works based on the Revenue Reverb Platform, the Embed Code or the Documentation, provided that Customer may make reasonable copies or extracts of the Documentation for its internal use; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Revenue Reverb Services, the Embed Code or the Documentation available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer, disassemble, decompile or otherwise attempt to reconstruct any of the Revenue Reverb Technology, including attempting to obtain the source code for any component of the Revenue Reverb Technology; or (iv) use the Revenue Reverb Platform, the Embed Code or the Documentation in any way which violates any applicable laws or regulations. Revenue Reverb reserves the right, in its sole discretion and without prior notice to Customer, to modify, discontinue, add, adapt or otherwise change any design or specification of the Revenue Reverb Platform, the Embed Code and/or Revenue Reverb’s policies, procedures and requirements specified in or related thereto, provided such changes do not materially degrade the functionality, performance or accessibility of the Revenue Reverb Platform.
2. Collected Data. As between Customer and Revenue Reverb, Customer shall own all Collected Data, and except as expressly provided herein or as available publicly, Customer reserves all rights, title and interest in and to the Collected Data. Notwithstanding the foregoing, Customer acknowledges and agrees that any and all publicly available information that Revenue Reverb obtains in connection with the provision of the Revenue Reverb Platform to Customer, including, without limitation, Collected Data, may be added to and maintained in Revenue Reverb’s general database and may be used by Revenue Reverb for internal business purposes and/or external consulting services.
Confidentiality and Security.
1. Confidentiality. Each of Customer and Revenue Reverb agrees that all items of Confidential Information are proprietary to the disclosing party (or the applicable third party) and will remain the sole property of the disclosing party (or such third party). Each of Customer and Revenue Reverb further agrees as follows: (i) to use, reproduce or disclose the Confidential Information disclosed by another party only for the purposes authorized by the Agreement and/or as necessary to carry out its obligation and exercise its rights under the Agreement (and in particular, Revenue Reverb shall be permitted to use Customer’s Confidential Information to provide the Revenue Reverb Platform, to develop and offer the Referral Reverb Program Marketplace, to prevent or address service or technical problems, to verify service improvements, and to perform Revenue Reverb’s other obligations as set forth in and in accordance with the terms and conditions of the Agreement and the Documentation, or in accordance with Customer’s instructions), and to otherwise hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (ii) to restrict access to the Confidential Information disclosed by another party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and are required to treat such information in accordance with the terms of the Agreement; and (iii) to return or destroy all Confidential Information disclosed by another party that is in its possession upon termination or expiration of the Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information of another party to the limited extent required in order to comply with applicable law or court order, provided that the party making the disclosure pursuant to such law or court order shall first have given notice to the disclosing party (unless otherwise prohibited by applicable law) and shall have provided such assistance as may be reasonably requested by the disclosing party, at the disclosing party’s sole cost and expense, to limit such disclosure.
2. Security. Revenue Reverb agrees, at all times during the Term of the Agreement, to maintain data security in a manner which conforms to generally recognized industry standards and to: (a) maintain network security using: network firewall provisioning, intrusion detection, and vulnerability assessments; (b) preserve the confidentiality, integrity and accessibility of Confidential Information with administrative, technical and physical measures; (c) store, process, and maintain Confidential Information solely on designated target servers with no Confidential Information transferred to any portable device or storage medium, unless encrypted and for the purpose of either providing technical support services or a designated backup; and (d) store all Confidential Information in encrypted form, using a commercially supported encryption solution. Customer and each of Customer’s Authorized Users shall be obligated to keep all passwords confidential, and will be responsible for all use of Customer’s and Customer’s Authorized Users’ passwords and Customer’s account. Customer shall notify Revenue Reverb immediately of any unauthorized use of any such passwords for Customer’s account used for access to the Revenue Reverb Platform, or any other known or suspected breach of security related to the Revenue Reverb Platform.
Warranties; Limitation of Liability.
1. Warranties. REVENUE REVERB WARRANTS THAT THE REVENUE REVERB PLATFORM PROVIDED UNDER THE AGREEMENT SHALL BE PROVIDED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, THE APPLICABLE DOCUMENTATION AND THE SERVICE LEVELS PROVIDED IN EXHIBIT A. THE REVENUE REVERB PLATFORM AND ALL OTHER REVENUE REVERB PRODUCTS, SERVICES AND MATERIALS ARE OTHERWISE PROVIDED BY REVENUE REVERB “AS IS” AND REVENUE REVERB DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. REVENUE REVERB DOES NOT WARRANT OR GUARANTY THAT ALL ERRORS CAN OR WILL BE CORRECTED, THAT THE REVENUE REVERB PLATFORM WILL OPERATE WITHOUT ERROR, OR THAT CUSTOMER’S (OR ANY AUTHORIZED USER’S) USE OF THE REVENUE REVERB PLATFORM WILL PRODUCE ANY SPECIFIC RESULTS. IN ADDITION, REVENUE REVERB DISCLAIMS ALL LIABILITY, AND ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO (I) ANY OF CUSTOMER’S PRODUCTS OR SERVICES, (II) ANY OF CUSTOMER’S OR ANY AUTHORIZED USER’S ACTIONS OR OMISSIONS WITH RESPECT TO THE DEVELOPMENT, PRODUCTION, MARKETING, ADVERTISING, SALE OR DELIVERY OF ANY OF CUSTOMER’S PRODUCTS AND/OR SERVICES (OR ANY PRODUCT OR SERVICE OF ANY THIRD PARTY THAT IS MARKETED, ADVERTISED, SOLD OR DELIVERED BY CUSTOMER OR ANY SUCH AUTHORIZED USER), OR (III) ANY REFERRAL FEES, COMMISSIONS, DISCOUNTS AND/OR CREDITS OWED BY CUSTOMER TO ANY OF CUSTOMER’S AUTHORIZED USERS.
2. Limitation of Liability. NEITHER REVENUE REVERB NOR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WILL BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S OFFICERS, DIRECTORS, EMPLOYEES, USERS, CUSTOMERS OR AGENTS FOR ANY CLAIMS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE NATURE OF THE CLAIM. REVENUE REVERB’S AGGREGATE LIABILITY FOR ALL CASES AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER BROUGHT IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) SHALL NOT EXCEED WITH RESPECT TO ANY CUSTOMER, THE TOTAL MONTHLY FEES PAID BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
3. Customer acknowledges and agrees that the disclaimers, exclusions and limitations of liability set forth in this Section 5 form an essential basis of the Agreement, and that absent these disclaimers, exclusions and limitations of liability, the terms of the Agreement, including the economic terms, would be substantially different.
Pricing and Payment.
1. Payment of Fees and Expenses. Customer shall pay to Revenue Reverb, without offset or deduction, the fees as set forth in each Order Form (including, without limitation, any applicable subscription fees for the use of the Revenue Reverb Platform and, if applicable, the designated percentage of revenue resulting from completed sales using the Revenue ReVerb Platform), and Customer also shall be obligated to reimburse Revenue Reverb for any out-of-pocket costs and expenses that are pre-approved in writing by Customer and are incurred by Revenue Reverb directly in connection with the provision of, and as reasonably contemplated by the description of, the portion of the Revenue Reverb Platform ordered by Customer. All payments under the Agreement are to be in U.S. dollars. Unless otherwise provided in the applicable Order Form, the subscription fees set forth in the Order Form shall be payable on the first day of the applicable Order Form Term, payment of amounts due to Revenue Reverb for and in connection with the Revenue ReVerb Platform shall be made on at least a monthly basis, and reimbursement of out-of-pocket costs and expenses shall be payable within thirty (30) days of Customer’s receipt of an invoice detailing such costs and expenses, and such payments may be made via a charge to the credit card provided by Customer to Revenue Reverb, via payment by check, via automated clearinghouse (ACH), or via any other payment method accepted by Revenue Reverb (or any combination of any of the foregoing). If Customer fails to pay any amount payable by it under the Agreement by the date due, Revenue Reverb shall have the right to recover from Customer all expenses of collection (including reasonable legal fees). In addition to any other right or remedy available to Revenue Reverb at law or equity under the Agreement, Revenue Reverb has the right to suspend or terminate the right to access and use any or all of the Revenue Reverb Platform for non-payment.
2. Fee Increases. Revenue Reverb may provide written notice of its intention to increase fees, as well as the designated percentage of revenue resulting from completed sales using the Revenue ReVerb Platform, in any renewal term for an Order Form. Such notice will be provided to Customer at least ninety (90) days prior to the beginning of a renewal term of the applicable Order Form. If the proposed new fees are unacceptable to Customer, Customer has the option not to renew the applicable Order Form Term as provided in Section 7.a.
3. Taxes. Customer is solely responsible for paying any sales, use, value added or other taxes attributed to Customer’s fee for the Revenue Reverb Platform (and support related thereto), other than taxes on Revenue Reverb’s net income.
Term and Termination.
1. Term of the Agreement; Order Form Term(s). The Agreement shall be effective and shall apply to Revenue Reverb’s provision of the Revenue Reverb Platform and Customer’s access to and use of the Revenue Reverb Platform for so long as Customer and Revenue Reverb are parties to an effective Order Form (the “Term of the Agreement”). Unless expressly provided otherwise in an Order Form, the initial term of such Order Form shall begin on the effective date specified in such Order Form and shall expire on the first anniversary of such date, unless earlier terminated in accordance with these Terms, and thereafter the term of such Order Form shall automatically renew for successive twelve (12) month terms unless either party provides the other party with written notice of non-renewal of such Order Form at least ninety (90) days prior to the expiration of the then-current term of such Order Form. The initial term and any renewals of each Order Form shall be referred to herein as the “Order Form Term”. The Agreement also may be terminated as provided in Section 7.b.
2. Termination for Breach. Either Customer or Revenue Reverb may terminate the Agreement and/or any Order Form if the other party materially breaches any term or condition of the Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach from the other party. Termination of the Agreement or any Order Form shall not constitute either party’s exclusive remedy for breach or non-performance by the other party, and each party shall be entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
3. Right to Suspend. Revenue Reverb reserves the right, in its sole discretion, to immediately suspend the provision of the Revenue Reverb Platform, or any portion thereof, to Customer at any time: (i) if Customer (or any Authorized User of Customer, or any other others who access the Revenue Reverb Platform on Customer’s behalf or through Customer’s account) uses the Revenue Reverb Platform and/or the Revenue Reverb Technology in any manner that produces, or is reasonably likely to produce, a detrimental impact on other users or the operation or performance of the Revenue Reverb Platform or the Revenue Reverb Technology; or (ii) to protect against the commission of actual or suspected illegal activities. Revenue Reverb will attempt to contact Customer in advance of any such suspension, and, if possible, work with Customer to avert such action, but otherwise shall notify Customer of a suspension under this Section as soon as possible.
4. Rights and Obligations Upon Termination. Upon termination or expiration of the Agreement for any reason (or in the case of termination or expiration of an Order Form, under that Order Form) (i) all future rights granted under the Agreement to Customer and granted by Customer to Revenue Reverb shall terminate, and Revenue Reverb shall immediately discontinue Customer’s access to the Revenue Reverb Platform and any other services provided hereunder, and (ii) Customer shall return all Confidential Information and documentation related to the Revenue Reverb Platform, and Revenue Reverb shall return to Customer all of Customer’s Confidential Information.
5. Survival. All provisions of the Agreement which by their nature are intended to survive the termination of the Agreement, shall survive, including without limitation obligations regarding Proprietary Rights, Confidentiality, Disclaimer of Warranties, Limitation of Liability, Payment of Fees and Expenses, Rights and Obligations Upon Termination, Indemnification, Dispute Resolution and General.
Indemnification. Customer shall defend, indemnify and hold harmless Revenue Reverb, its officers, directors, employees, representatives, and agents, from and against any Losses arising out of the actual or alleged (a) use or exploitation of Collected Data in violation of any applicable law, (b) use of the Revenue Reverb Platform or Embed Code other than as authorized by the Agreement, or (c) any Losses relating to or resulting from the development, production, marketing, advertising, sale or delivery of any of Customer’s products and/or services (or any product or service of any third party that is marketed, advertised, sold or delivered by Customer to or any Authorized User of Customer). Revenue Reverb shall defend, indemnify, and hold harmless Customer, its officers, directors, employees, representatives, and agents from and against any Losses arising out of the actual or alleged infringement of the intellectual property rights of a third party associated with the Revenue Reverb Platform. In the event a claim of infringement subject to indemnification is made, or Revenue Reverb believes that such a claim is likely to be made, Revenue Reverb shall, at its expense, either: (i) procure for Customer the right to continue using the Revenue Reverb Platform; or (ii) replace or modify the Revenue Reverb Platform so that they become non-infringing; or (iii) if neither (i) nor (ii) above is commercially reasonable, terminate the Agreement (or the applicable Order Form) and issue a refund for any prepaid but undelivered right to access and use the Revenue Reverb Platform. Neither party, in its capacity as the indemnifying party (in such capacity, the “Indemnifying Party”) will consent to the entry of a judgment or settle any indemnified claim without the prior written consent, which may not be unreasonably withheld, of the indemnified party (in such capacity, the “Indemnified Party”). The Indemnifying Party will use counsel reasonably satisfactory to the Indemnified Party. If the Indemnified Party reasonably determines that a defense or defenses are available to the Indemnified Party that are not available to the Indemnifying Party, and raising the defense or defenses would create a conflict of interest for the counsel defending the claim, the Indemnified Party will be entitled to retain separate counsel for the purpose of raising these defenses at the Indemnified Party’s expense. The Indemnifying Party’s obligations under this Section are independent of its other obligations under the Agreement and shall survive termination of the Agreement.
Dispute Resolution. In the event of a dispute between the parties, the parties agree that an executive from each company shall negotiate in good faith in an effort to resolve the dispute. If such dispute is not resolved after such discussion then the parties shall arbitrate their dispute as provided herein. Except for claims seeking injunctive relief for which court relief may be sought, or claims involving Intellectual Property Rights or Proprietary Information, the parties shall arbitrate any dispute resulting from or arising as a result of the Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA“) and shall be administered by AAA in Las Vegas, Nevada, unless the parties mutually agree on an alternate organization for dispute resolution.
General. The Agreement represents, as between Revenue Reverb and Customer, the entire understanding regarding the provision, access to and use of the Revenue Reverb Platform, and supersedes all prior proposals, agreements and undertakings related thereto, and any deviation from the Agreement will require the express written consent of Revenue Reverb. Customer may not assign its rights or obligations under the Agreement without the prior written consent of Revenue Reverb. Subject to the foregoing limitation, the Agreement is binding upon and inures to the benefit of the successors and assigns of the parties. The Agreement shall be governed by the laws of the State of Nevada, without regard to conflict of laws provisions, and the parties agree that any action related to or arising out of the Agreement shall be venued solely in a State or Federal court of competent jurisdiction located in the State of Nevada, Clark County, and the parties irrevocably waive any right to object thereto. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver, nor shall any waiver be effective, unless expressly set forth in a writing signed by the waiving party, and such written waiver will not excuse the performance of any acts other than those specifically referred to therein. If any part, term, or provision of the Agreement is held to be illegal, unenforceable, or in conflict with any law of a Federal, state, or local government having jurisdiction over the Agreement, the validity of the remaining portions or provisions are not to be affected thereby. Any notice given pursuant to the Agreement shall be in writing and shall be given by personal service, overnight courier or by first class mail, postage prepaid to the addresses appearing at the beginning of the Agreement, or as changed through written notice to the other party. Notice given by personal service or overnight courier shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third (3rd) business day following its placement in the mail addressed to the addressee. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under the Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, pandemic, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority. The party affected by such an event shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay. Notwithstanding anything in the Agreement to the contrary, and without disclosing the specific terms of the Agreement, Revenue Reverb may refer to the fact that Customer is a customer of Revenue Reverb on Revenue Reverb’s customer lists, advertising and marketing materials, in press releases, presentations and on its website (including use of Customer’s or its customers’ name and logos, subject to any written use restrictions or policies provided by Customer to Revenue Reverb), and can use portions of the Revenue Reverb Platform (redacting any Confidential Information) as examples of Revenue Reverb’s work and to use Customer as a reference. The rights granted by Customer within immediately preceding sentence may be revoked by Customer at any time and for any reason without resulting in a breach of the Agreement and do not survive the termination of the Agreement.

Exhibit A

Service Level Agreement

Support.During the Term of the Agreement, Revenue Reverb’s support provided to Customer shall comprise the following:
Error Corrections.Revenue Reverb will use commercially reasonable efforts to correct all verifiable and reproducible errors in the Revenue Reverb Platform and Embed Code reported by Customer in writing to Revenue Reverb. Revenue Reverb will utilize remote diagnostic procedures whenever possible for error diagnosis and error correction. Revenue Reverb may not issue error corrections for all errors.
Updates.During the Term, Revenue Reverb may, in its sole discretion, provide Customer with updates that Revenue Reverb then generally offers to other customers of the Revenue Reverb Platform. As used herein, updates are periodic improvements or additions to the Revenue Reverb Platform and Embed Code, including error corrections, but excluding any new feature or substantial additional functionality which, in Revenue Reverb’s sole discretion, is subject to additional fees and/or Reverbprovisions. All updates are issued by Revenue Reverb and shall become part of the Revenue Reverb Platform and/or Embed Code for the purposes hereof.
Service Levels. The Revenue Reverb Platform will be available 24 hours a day, 365 days per year, except for normal down time, Scheduled Maintenance or as otherwise as provided in the Agreement (“Service Levels”). For purposes of these Service Levels, the following definitions shall apply only to the Revenue Reverb Platform:

“Downtime” shall mean access loss within Revenue Reverb’s network due to the failure of Revenue Reverb to provide the Revenue Reverb Platform. Downtime shall not include any access loss or network unavailability during Scheduled Maintenance or due to causes beyond Revenue Reverb’s reasonable control.
“Scheduled Maintenance” The Revenue Reverb Platform shall be unavailable for a period of two hours per month in order for Revenue Reverb to provide maintenance and upgrades to the Revenue Reverb Platform, or other related systems.

Service Credit. In the event of Downtime, Customer shall be eligible to receive from Revenue Reverb a Service Credit as provided herein, as Customer’s sole and exclusive remedy. Service Credits shall correspond to the annual fees for the Revenue Reverb Platform at issue, pro-rated for the amount of Downtime. For example, if a Revenue Reverb Platform is unavailable for one (1) day during the month of December, Customer shall be entitled to a Service Credit of 1/365 multiplied by the annual fee. The Service Credit shall be issued to Customer in the first renewal period following the Downtime.