Root.io Platform Terms And Conditions
Root provides a two-sided SaaS application security platform (the “Platform”) that enables software producers to (a) share security findings, SBOMs and exploitability information (VEX) with customers; (b) collaborate with customers to address security concerns; and (c) provide ongoing software security reporting, monitoring and remediation; and Customer desires to use such Platform as set forth on the Order into which these Terms are incorporated, and Root desires to grant Customer access to such Platform in accordance with the Terms.
1. Certain Definitions
“Analyses” means observations, scan results, triage information, resolution guidance generated and imported into the Platform. “Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement. “Container” means a cloud-native, standalone and executable software package that includes all necessary components to run an application, including code, runtime system tools, operating system, libraries and settings.
“Effective Date” means the date on which the parties have mutually executed an Order.
“Fees” means the amounts payable by Customer to Root pursuant to this Agreement (including without limitation the applicable Order).
“Output” means new container output, scan results, software bill of materials (SBOM), VEX statements produced by the Services regarding Containers that are analyzed by the Service.
“Patch” means a software update provided by Root through the Service that addresses, resolves or minimizes specific vulnerabilities, bugs, errors or security issues with the software within a Container.
“Service” means the service and access to the Platform as described on the Order, including the provision of Patches, Updates and Root Updates.
“Term” means the subscription period identified in the Order.
2. Provision of Service and Documentation
2.1. License Grant. During the Term and subject to the Terms (including any usage limitations set forth in the Order), Root will provide Customer access to and use of: (a) the Service for (i) Customer’s internal use by employees or contractors of Customer and (ii) Customer’s invited third party collaborators, in each case who Customer permits to use the Service (collectively, “Authorized Users”) and (b) the product documentation provided by Root in connection with the Service (the “Documentation”) solely for Customer’s use of the Service. Customer may establish access rights and restrictions for its Authorized Users depending on role.
2.2. Restrictions. Customer will not use the Service or Documentation for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or copy the Service or Documentation, in whole or in part, except as permitted hereunder; (b) use the Service or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Service or any copy thereof to any third party; (d) misappropriate any data or information from the Service or Documentation; (e) disrupt the functioning of the Service; (f) otherwise act in a manner that interferes with Root’s operation of the Service or with the use of the Service by others; (g) gain any unauthorized access to the Service or Documentation for any other purpose or access or use the Service to circumvent or exceed usage limitations; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Service, Documentation, any Root Update (defined below) or any security technology, software, or rights management information contained within the Service or in any software used to enable the Service; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Service, Root Updates or Documentation; (j) use the Service or Documentation for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Service; (k) access or use the Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (l) exploit the Service in any unauthorized way whatsoever, including without limitation by trespass or burdening server or network capacity or Service infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Service infrastructure); or (m) attempt, or encourage or assist any third party to do, any of the foregoing.
2.3. Third Party Products. In connection with the Service, Root may make available certain third-party Patches, products and services, including but not limited to publicly available or open source software (“Third-Party Products”) for use in connection with the Platform (e.g., open source vulnerability scanners and open source Patches) and to update vulnerabilities, errors or other identified issues with Containers. Such Third-Party Products may be made available under separate or additional terms and conditions, including but not limited to open source licenses, which we will make available to you as necessary.
2.4. Container Updates. The Services can be configured to allow Root to make changes, provide updates or Patches or otherwise modify the non-proprietary software and code included within the Container (collectively, “Updates”), which may be implemented either automatically or manually. Any such Updates (which may be Third-Party Products) are subject to the open source or other third party licenses that are applicable to such Update, and will be identified to Customer. For Updates that are Third-Party Products, Customer may continue to use any such Updates provided following any termination or expiration of this Agreement in accordance with the applicable license terms. Certain Patches and Updates are developed by Root to specifically address, resolve or minimize specific vulnerabilities, bugs, errors or security issues with the software within a Container where a third-party Patch is not available (each, a “Root Update”). Root Updates will be specified by a .root extension. Root Updates are proprietary to Root. Subject to the terms and conditions of this Agreement during the Term, Root hereby grants to Customer a non-exclusive, non-transferable, royalty-free right and license CONFIDENTIAL AND PROPRIETARY to use and reproduce such Root Updates solely in connection with the Container that was updated by Root.
2.5. Usage Data. Root may collect, maintain, process and use, or Customer may provide to Root, diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software, including collaboration information among Authorized Users regarding its use of the Services and decisions and comments concerning the implementation of Patches, Updates and Root Updates (“Usage Data”). Customer agrees that all Usage Data is owned solely and exclusively by Root, and Root accordingly may use such Usage Data for any lawful purpose, including to: (a) provide and maintain the Service for Customer; (b) develop and improve the Service; (c) monitor Customer’s usage of the Service; (d) for research and analytics and for Root’s other business purposes; and (e) share analytics and other derived Usage Data with third parties solely in deidentified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service. Customer acknowledges and agrees that Root may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Root’s rights, including all intellectual property rights, in and to the Service.
2.6. Reservation of Rights. Root reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service, Platform or Documentation.
2.7. Customer Responsibilities. Customer is responsible and liable for all uses of the Service, Platform and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including without limitation the content of any Containers. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Service and Documentation and will cause Authorized Users to comply with such provisions.
3. Ownership and Data Rights
3.1. Ownership. As between Root and Customer: (a) Customer or its licensors own all right, title and interest in and to Containers and any Output; and (b) Root owns all right, title and interest in and to the Platform, Service, Analyses, Root Updates, Documentation, and Usage Data, including but not limited to all intellectual property and other proprietary rights therein and thereto.
3.2. Customer License. Customer hereby grants to Root during the Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to use, access and modify the Container as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Service to Customer). Root does not have access to and does not require usage of any proprietary applications contained within a Container.
4. Fees; Payment.
4.1. Fees. Customer shall pay the Fees set forth in the applicable Order in accordance with the payment terms set forth therein. Fees are non-refundable unless otherwise set forth in this Agreement (including without limitation the applicable Order). All amounts payable to Root under this Agreement shall be paid by Customer to Root in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Applicable Laws).
4.2. Overages. If Customer's use of the Platform exceeds the applicable Subscription Plan or otherwise requires the payment of additional Fees (per the terms of the applicable Order), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided therein.
4.3. Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Root harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder. If such failure to pay continues for ten (10) days following written notice thereof, Root may: (a) withhold, suspend or revoke its grants of rights hereunder; and/or (b) terminate this Agreement under Section 5.2.
4.4. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Root's net income. If Root has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.4, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Root with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5. Fee Increases. Root may, in its sole discretion, increase or otherwise modify the Fees at each renewal period during the Term by providing Customer notice of changes to the Fees at least seven (7) days prior to the end of the then-current Term. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.
5. Term and Termination
5.1. Term. Unless earlier terminated in accordance with this Section 5, this Agreement and the rights granted hereunder shall be effective as of the Effective Date and shall continue through the Term. The Agreement will automatically renew for additional periods equal to additional successive one (1) year periods unless a party provides the other written notice of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
5.2. Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
5.3. Effect of Termination. Contingent upon receipt of all Fees due and any additional charges (if any), Customer may, for a period of thirty (30) days following termination, arrange for the retrieval/downloading of its Containers and any Output. Except as set forth herein, on the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer will immediately terminate, and Customer will: (i) immediately cease all use of and other activities with respect to the affected Service and Documentation; and (ii) return to Root or destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, Root’s Confidential Information; provided, however, that neither Customer nor any of its CONFIDENTIAL AND PROPRIETARY representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination; and (b) all amounts payable by Customer to Root of any kind are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement. If Root terminates this Agreement pursuant to Section
6. Confidentiality
6.1. Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Service, the Documentation, the Usage Data, and the Terms shall be Root's Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information, using at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
6.2. Remedy. Each party agrees and acknowledges that any breach or threatened breach of this Section 6 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
5.2(a), Root will not refund to Customer any Fees prepaid by Customer for any unused credit.
5.4. Survival. Sections 1, 2.2, 2.3, 2.6, 2.7, 3, 4, 5.3, 5.4, 6 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 7, 8, 9, 10.1 (solely with respect to claims arising during the Subscription Term), 10.2, 10.3, 10.4, 10.5, 10.6, 11, and 12 shall survive termination of this Agreement.
7. Privacy and Security
Customer understands that by using Root’s products and services, Customer agrees to Root’s collection, use and disclosure of certain Customer personal information and other Customer Inputs as set forth in the Privacy Policy (located at [link]). Customer understands that Root cannot guarantee that unauthorized third parties will never be able to defeat Root’s security measures or use Customer personal information or other Customer Inputs for improper purposes. Customer acknowledges that it provides personal information and other Customer Inputs at its own risk. For the purposes of these Terms, “personal information” is defined in the Privacy Policy.
8. Suggestions and Improvements.
Customer may choose to or Root may invite Customer to submit comments or ideas about Root’s products and services, including without limitation the Service and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Root under any fiduciary or other obligation, and that Root is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Root does not waive any rights to use similar or related ideas previously known to Root, or developed by its employees, or obtained from sources other than Customer.
9. Representations and Warranties
9.1. Performance Warranty; Sole and Exclusive Remedy. Subject to the limitations and conditions set forth In Section
9.2, Root hereby represents and warrants to Customer that, during the Term, (a) when operated and used as recommended in the Documentation applicable to the particular Service and in accordance with this Agreement, the Service will perform in material accordance with the applicable Documentation (the “Performance Warranty”); and (b) Root will use reasonable efforts consistent with industry standards designed to ensure that no viruses, spyware, malware, or similar items will be coded or introduced into the Service. Customer’s sole and exclusive remedy for Root’s breach of its Performance Warranty will be for Customer to submit a support request and for Root to use commercially reasonable efforts to respond to and resolve such request; and if Root is unable to remedy a breach of the Performance Warranty within a reasonable time, Customer may terminate this agreement and receive a refund of any prepaid and unused fees for the remaining Term. The limited warranty set forth in this Section 9.1 will apply only if Customer, as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing).
9.2. Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 9.1 does not apply to problems arising out of or relating to: (a) Service that is modified or damaged by Customer or its representatives; (b) any operation or use of, or other activity relating to, the Service other than as specified in the Documentation applicable to the particular Service, including any incorporation in the Service of, or combination, operation or use of the Service in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation applicable to the particular Service; (c) the operation of, or access to, Customer’s or a third-party’s system or network; (d) any beta software, software that Root makes available for testing or demonstration purposes, temporary software modules, or software for which Root does not receive CONFIDENTIAL AND PROPRIETARY a fee; (e) Customer’s breach of any provision of this Agreement; or (f) a Force Majeure Event.
9.3. Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the Service and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access and/or use Containers to which the Platform has access; and (c) Containers and Root’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including without limitation any intellectual property right or privacy right, (ii) any liability from Root to any third party, or (iii) the payment by Root of any fees to any third party.
9.4. Warranty Disclaimer.
9.4.1. General Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (A) ROOT, ON BEHALF OF ITSELF AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (B) THE PLATFORM AND SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ROOT AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE PLATFORM AND SERVICE.
9.4.2. Results of Use of the Service. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND ROOT’S PROVISION OF, THE PLATFORM, UPDATES, PATCHES, ROOT PATCHES, THIRD-PARTY PRODUCTS, AND OUTPUT MAY NOT RESULT IN ANY SPECIFIED RESULT OR CORRECT ANY ERROR, VULNERABILITY, BUG OR SECURITY ISSUE. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION AND OUTPUT PROVIDED VIA THE PLATFORM IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE. ACCORDINGLY, ROOT HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES ROOT FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION OR OUTPUT PROVIDED VIA THE PLATFORM AND FROM ANY IMPLEMENTATION OR USE OF ANY THIRD-PARTY PRODUCTS, UPDATES, ROOT UPDATES, PATCHES OR OUTPUT.
10. Indemnification
10.1. Root Indemnity. Root shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third-party to the extent based upon a claim that the Platform infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Root may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
10.2. Root Options. Should the Platform become, or in the opinion of Root be likely to become, the subject of such an infringement claim, Root may, at its option: (a) procure for Customer the right to use the Platform at no cost to Customer; (b) replace or modify, in whole or in part, the Platform to make it non-infringing; or (c) if neither (a) nor (b) are, in Root’s sole and absolute discretion, commercially practicable, discontinue Customer’s access to the Platform, or the allegedly offending module thereof, and, refund unused Fees paid therefor.
10.3. Exclusions from Root Indemnity. Root assumes no liability under this Section 10 for: (a) any Customer method or process in which the Service or Platform may be used; (b) any compliance with Customer’s specifications; (c) modification of the Service or Platform other than: (i) by Root in connection with this Agreement or (ii) with Root’s express written authorization and in strict accordance with Root’s written specifications; (d) the combination, operation or use of the Service or Platform with non-Root technology, service or data; (e) use of the Service or Platform after Root’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third-party’s rights and provision of a non-infringing alternative; (f) negligence, abuse, misapplication, or misuse of the Service, Platform or Documentation by or on behalf of Customer, Customer’s representatives, or a third-party; (g) use of the Service, Platform or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement; or (h) claims for which Customer is obligated to indemnify Root pursuant to Section 10.4, and Customer shall indemnify and hold harmless Root and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (h) (inclusive) above.
10.4. Customer Indemnification. Customer shall defend, indemnify, and hold harmless Root and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or relating to: (a) Containers; or (b) Customer’s or its Authorized Users’: (i) use of and access to the Service in a manner inconsistent with this Agreement and Documentation; (ii) breach of Section 2 or 9.3; or (iii) Customer’s negligence or willful misconduct.
10.5. Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
10.6. Sole Remedy for Infringement. THIS SECTION 10 SETS FORTH ROOT’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SOFTWARE AND THIS AGREEMENT.
11. Limitation of Liability
11.1. Liability Caps. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO ROOT HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
11.2. Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT CONFIDENTIAL AND PROPRIETARY LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 7, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3. Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 2 or 9.3; (b) either party’s breach of its confidentiality obligations under Section 6; (c) either party’s indemnification obligations under Section 10; (provided that in no event shall Root’s liability in connection with such obligations exceed three times (3X) the amount paid or payable by Customer to Root during the one (1) year period immediately prior to the event giving rise to the liability); and (d) the gross negligence or willful misconduct of either party or its agents.
11.4. Customer Acknowledgment. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
12. Miscellaneous
12.1. Assignment. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 12.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
12.2. Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 12.2 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
12.3. Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the laws of the State of Delaware without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Wilmington, Delaware. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration JAMS, the in accordance with the JAMS Streamlined Arbitration Rules and Procedures, except as provided herein. The arbitration will be conducted in Wilmington, Delaware, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 12.3 shall be deemed as preventing either party from seeking injunctive, equitable or other relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
12.4. Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
12.5. Publicity. Customer hereby grants to Root during the Term and for six (6) months following the expiration or termination of the Term, a non-exclusive, royalty-free, non-sublicensable license to use Customer’s name, logo and trademarks in Root’s advertising, literature and websites for the purpose of identifying Customer as a current or former Root client or affiliate. This license shall include the right to use quotes from Customer’s Authorized Users regarding their satisfaction with Root and/or the Service. Customer shall have no right to use Root’s Marks.
12.6. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to Root must be sent to legal@root.io.
12.7. U.S. Government Restricted Rights. If the Service is being used by the U.S. Government, the software underlying the Service is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
12.8. Export Law Assurances. Customer understands that the Service is or may be subject to export control laws and regulations. CUSTOMER MAY NOT USE OR OTHERWISE EXPORT OR RE-EXPORT THE PLATFORM OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE PLATFORM OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY CONFIDENTIAL AND PROPRIETARY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
12.9. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
12.10. Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. No online (click wrap, browse wrap, or other) posted terms, nor any ordering documents, apply. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect. CONFIDENTIAL AND PROPRIETARY