These Terms of Service govern your access to and use of the website located at https://rhinogram.com/ or any subdomain thereof (the “Website”), the applications made available by Rhinogram (the “Rhinogram Apps” and collectively with the Website, the “Rhinogram Sites”) and the services subscribed for by you pursuant to your herein defined Contract (the “Services”) offered by Rhinogram through the Rhinogram Sites or otherwise.  You acknowledge that you have read, understand and agree to be bound by these Terms of Service.  If you do not agree to these Terms of Service, do not accept or agree to be legally bound by these Terms of Service or access or use the Rhinogram Sites or the Services.

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These Terms of Service, together with the contract you have entered into with Rhinogram (the “Service Contract”) and any other agreements, service orders, purchase orders and other documents incorporated herein by reference or otherwise entered into between you and Rhinogram in connection with the Services (collectively with the Service Contract, the “Contract”), govern the access to and use of the Rhinogram Sites and the Services.  These Terms of Service and the Contract may collectively be referred to as the “Rhinogram Terms.”  “Rhinogram” means Rhinogram, Inc., a Delaware corporation.   “Client” or “you” means the person or entity that is a party to a Contract and accepts or otherwise agrees to be legally bound by the Rhinogram Terms or is using or accessing the Rhinogram Sites and the Services.  To the extent applicable, Client or you shall also include any person or entity that accesses or uses the Rhinogram Sites without being a party to a Contract.

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1. REPRESENTATIONS.

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1.1. You represent and warrant that you are over the age of 18 and have the capacity and authority to accept and agree to be legally bound by the Rhinogram Terms.  If you represent an entity, you represent and warrant to Rhinogram that you have the legal power and authority necessary to cause such entity to accept and agree to be legally bound by the Rhinogram Terms.  If you do not have the power and authority to legally bind such entity, you are and shall be personally liable under the Rhinogram Terms and agree to indemnify Rhinogram with respect to any claims, losses, expenses (including, without limitation, reasonable legal fees and expenses) or other damages (collectively, “Damages”) arising or resulting therefrom.  Rhinogram shall not have any liability for any Damages arising or resulting from reliance on any representation, warranty, agreement, instruction, notice or communication received from you, whether on your own behalf or on behalf of such entity.

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2. USE OF THE SERVICES. 

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2.1. Rhinogram Services. Subject to Client’s payment of Client’s subscription, license and/or other fees or other charges in accordance with the Rhinogram Terms and Client’s full and ongoing compliance with the other Rhinogram Terms, Rhinogram grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable authorization for Client’s authorized user(s) to access and use the Services solely for Client’s own organization. To the extent that Rhinogram makes the Services available for direct integration with Client’s web properties, Rhinogram grants to Client a personal, limited, revocable, non-transferable, non-sublicensable right to such integration into those web properties that are owned or controlled by Client solely for such purpose.

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2.2. Client Responsibilities. Client shall not allow any unauthorized access to or use of the Rhinogram Sites or the Services (including, without limitation, by maintaining the confidentiality of all usernames, passwords, API keys, and similar access credentials). Client will be solely liable to Rhinogram for any and all activity or use of the Rhinogram Sites or the Services. Client must ensure individual accountability for all access to the Services by maintaining a unique login name and password for each person using the Services.  Client will promptly notify Rhinogram of any unauthorized access to or use of the Rhinogram Site or the Services.  Client will use the Rhinogram Sites and the Services only in accordance with the Rhinogram Terms, which may be amended from time to time by Rhinogram. In using the Services, the client also agrees to abide by all applicable privacy policies, laws, government regulations and third-party contracts. Such items include without limitation, any and all laws, regulations, and obligations relating to licensed medical services, privacy, publication, consumer protection, advertising, and industry self-regulatory guidelines or similar industry agreements or arrangements, including without limitation with the Health Insurance Portability and Accountability Act of 1996, as amended, with respect to, all information, content, medical records, images (including scans, x-rays, still images and videos), communications, comments, links and other materials transmitted through the Rhinogram Sites or the Services.  Client shall not (i) sell, resell, rent or lease the Services, or make the Services available to any third party on a service bureau basis, (ii) use the Services to store or transmit malicious code, (iii) use the Services to conduct any illegal activity or for any illegal purposes which include, without limitation, using the Services to violate any law, rule, regulation, governmental orders, industry standards or guidance in any applicable jurisdiction, (iv) interfere with or compromise the integrity or performance of the Rhinogram Sites or the Services or third-party data contained therein, (v) attempt to gain unauthorized access to the Services or their related systems or networks, (vi) use the Services to engage in an activity in connection or conjunction with any pornographic and/or adult entertainment industry purpose, regardless of whether such activity is lawfully permitted, (vii) use the Services to depict or endorse violence, hate speech or otherwise engage in threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent behavior, (viii) use the Services in connection with the sale or promotion of substances that are classified as controlled substances under federal law, including marijuana (cannabis) or (ix) unless expressly approved by Rhinogram, use the Services with respect to third-party or affiliate lead  and/or commission generation, advertisements for loans, credit repair offers, debt relief, consolidation or collection or work from home, secret shopper, multilevel marketing or similar advertising campaigns. Client is responsible for moderating and controlling the content displayed as part of the Services. Client will maintain industry standard organizational and technical safeguards for end user data accessed or collected by Client through the Services. If Client requires the use of proprietary assets (e.g. fonts, images, videos, etc.), Client will provide Rhinogram with an appropriate license for such proprietary asset, or alternatively Rhinogram will directly procure a license for such proprietary asset and invoice Client (at cost) for such license. RHINOGRAM EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY CONTENT, OR ANY COMPLIANCE WITH LAWS OR REGULATIONS GOVERNING HEALTH CARE OR HEALTH PROVIDERS. CONTENT, WHETHER PROVIDED BY OR THROUGH THE USE OF THE SERVICES, THE RHINOGRAM SITES OR THROUGH ANY OTHER COMMUNICATIONS FROM RHINOGRAM OR ANY THIRD PARTY, IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. CLIENT’S OR ITS USERS’ USE OF CONTENT IS SOLELY AT CLIENT’S OWN RISK. NOTHING STATED OR POSTED ON THE RHINOGRAM SITES OR AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTH CARE ADVICE BY RHINOGRAM, OR THE PROVISION OF MEDICAL CARE BY RHINOGRAM.

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2.3. Usage Limitations. The Services may be subject to other limitations set forth in the Contract and such limitations shall be deemed to be incorporated by reference into and made a part of these Terms of Service. Client will comply with any such limitations and Client will not attempt to exceed or circumvent such limitations. If Client exceeds or circumvents such limitations, or Rhinogram reasonably believes that Client has exceeded or circumvented any such limitations, then Client’s ability to use the Services may be temporarily or permanently blocked or suspended. Client may also be subject to additional charges.

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2.4. Support Services. If Client is subscribing for Services and is in compliance with the Rhinogram Terms, Rhinogram will provide basic support services to Client to address reported incidents of the Services not performing materially in accordance with applicable specifications. Basic support services include access to Rhinogram’s support team during normal business hours for general inquiries or questions and during after-hours for emergencies or blockers (issues preventing Client from accessing Rhinogram or being able to send or receive text messages successfully).

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3. PAYMENT AND FEES.

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3.1. Fees.  

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(a) Client shall pay Rhinogram the applicable fees and other charges (collectively, the “Fees”) set forth in Client’s Contract in accordance with the terms therein and herein.  If Client’s use of the Services exceeds the Contract pricing tiers or levels to which Client has subscribed (including, without limitation, with respect to message volumes), or if Client for any reason becomes subject to additional fees or charges, Rhinogram will bill Client for such excess or additional fees or charges at the then current Rhinogram pricing for the applicable billing period.  If Client desires to move a higher tier or level, Client shall in writing notify Rhinogram thereof.  All professional services purchased must be used during the applicable implementation cycle and will thereafter expire without credit or the payment of any refund.  If professional service hours are needed beyond those quoted in the Contract to complete the implementation cycle, Client must purchase additional professional service hours. Client agrees to pay any additional fees or charges in the manner provided herein.  Rhinogram reserves the right to change the Fees or applicable charges and to institute new Fees or charges at any time upon thirty (30) days prior written notice to Client, which notice may be sent by email or through other similar mechanism(s). 

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(b) If Client believes that Rhinogram has billed Client incorrectly, Client must notify Rhinogram in writing thereof no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to be eligible to receive an adjustment or credit.  The notice to Rhinogram must in reasonable detail describe the error or the problem and the Client’s desired resolution thereof.  Upon Rhinogram’s request, Client shall provide to Rhinogram any and all additional relevant information reasonably requested by Rhinogram.  Within thirty (30) days of receipt of such notice (or the date of receipt of any additional information, if later), Rhinogram shall respond to Client with its findings and resolution of the issue.  Notices and inquiries regarding the foregoing shall be directed to Rhinogram’s customer success department at success@rhinogram.com.

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3.2. Payment Dates.  

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(a) Except as otherwise set forth in the Contract, Client or its authorized agent agrees to pay Rhinogram’s Implementation and Training Fees (as defined in the Contract) set forth in the Contract within five (5) business days of Client receiving login credentials for the Rhinogram Sites (the date such payment is made, the “Payment Date”).  Payment of fees and other charges may be made by Client by entering Payment Card or ACH information on the Rhinogram Site or as otherwise set forth in the Contract (whichever is selected, the “Payment Method”). “Payment Cards” include but are not limited to credit, debit, bank, prepaid, charge, fleet and stored-value cards. 

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(b) For Clients electing to pay their monthly fees in an annual or other periodic prepayment, the monthly fees will be charged or billed, as applicable and in advance, to the Payment Method.  The first annual or other periodic pre-payment will be due and payable on the Payment Date.  Subsequent annual or other periodic pre-payments will thereafter be due and payable on each one-year (or other in the Contract agreed upon periodic) anniversary of the Payment Date.  

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(c) For Clients electing to pay their monthly fees on a monthly basis, the monthly fee will be charged or billed, as applicable and in advance, to the Payment Method.  The first monthly fee will be due and payable on the one-month anniversary of the Payment Date.  Subsequent monthly fees will thereafter be due and payable on each one-month anniversary of the Payment Date.

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3.3 Declined Payments. If any payment is declined, Rhinogram will provide notice to Client and Client will have fifteen (15) business days to supply a new form of payment or update the payment information via the Rhinogram Sites. The Rhinogram Site serve as a conduit for directing Client’s payment information to the payment card/clearing house site. The Payment Card information will not be stored, accessed or processed by Rhinogram. Proper tokenization processes performed by the Payment Card clearing house/processor will address the security of recurring monthly charges against Client’s Payment Card.

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3.4 Implementation and Training Fees. All Implementation and Training Fees are non-refundable. Implementation or training will not commence until the Implementation and Training Fees have been received by Rhinogram. The implementation cycle shall not exceed six (6) months. If the implementation cycle exceeds six (6) months, Client may be responsible for additional fees (in addition to any fees payable pursuant to Section 3.1).

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4. THIRD-PARTY SERVICES. 

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The Services may contain features designed to interoperate with third-party applications, products or services (such as cloud-based services, web platforms, storage, and analytical services) (collectively “Third-Party Services”). To use such features, Client may be required to obtain access to such Third-Party Services, or Rhinogram may be required to obtain access to such Third-Party Services on behalf of Client, from the providers of such Third-Party Services. Client may also be required to agree to the terms and conditions on which such Third-Party Services are provided.  If Client chooses to use such features and Rhinogram is required to obtain access to Third-Party Services on behalf of Client, Client authorizes Rhinogram to access the applicable Third-Party Services on Client’s behalf and obtain, access, store, and use the data made available to Rhinogram through the Third-Party Services in accordance with these Terms of Service. Client is solely responsible for its compliance with the terms and conditions applicable to any Third-Party Services accessed by or on behalf of Client in connection with the Services and will indemnify Rhinogram from any and all Damages incurred by Rhinogram in connection with a breach of the foregoing. Rhinogram shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third-Party Services and their providers. If the provider of any such Third-Party Service ceases to make the application available for interoperation with the corresponding feature of the Services on reasonable terms, Rhinogram may cease providing such features without entitling Client to any refund, credit, or other compensation. Any acquisition or use of Third-Party Services and any exchange of information between an end user and any third party is directly between the end users and the applicable third party, and any interaction between Client and end users is solely between Client and the end user. RHINOGRAM EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY END USER INTERACTIONS WITH THE RHINOGRAM SITES OR THE SERVICES OR ANY THIRD-PARTY SERVICES.

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5. PROPRIETARY RIGHTS. 

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5.1. Reservation of Rights. Rhinogram reserves all right, title and interest in and to the Rhinogram Sites and the Services, including all intellectual property rights. No rights are granted to Client other than as expressly set forth herein, whether by implication, estoppel, or otherwise. All enhancements, modifications, and derivative works made to the Rhinogram Sites or the Services (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by Rhinogram, whether or not such Derivatives are made at Client’s request or instruction, with the exception of any electronic data or information submitted, provided, or made available to Rhinogram by or on behalf of Client through the Rhinogram Sites or the Services (“Client Data”) contained in the Derivatives which shall continue to be owned by Client. Client hereby irrevocably assigns to Rhinogram all right, title and interest in and to the Derivatives, including all intellectual property rights therein, that may inure to Client or that Client is deemed to obtain pursuant to these Terms of Service.

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5.2. Restrictions. Client shall not (i) modify or create derivative works based on the Rhinogram Sites or the Services, (ii) reverse engineer the Rhinogram Sites or the Services, or (iii) access the Rhinogram Sites or the Services in order to (a) build a product or service similar to or competitive with  the Rhinogram Sites or the Services or the Third-Party Services, (b) carry out benchmarking of the Services, including by monitoring their availability, performance or functionality, or (c) copy any features, functions or graphics of the Rhinogram Sites or the Services.

 

5.3. Client Data. As between the parties, Client owns the Client Data, and hereby grants Rhinogram a non-exclusive, royalty-free right to access and use Client Data (i) as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Services; and (ii) in connection with the creation of any information or data derived from Client Data or Client’s or its end users’ use of the Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, including as may be required to develop, deliver and provide ongoing innovation to the Services.

 

5.4. Suggestions. Client may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by Client (“Suggestions“). Client hereby grants Rhinogram a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate any development resulting from Suggestions into the Rhinogram Sites, the Services or any other services, products, technologies, documentation or other development without any obligation of Rhinogram to pay any consideration therefor.

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6. LIMITED WARRANTY; DISCLAIMER. 

 

6.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into the Rhinogram Terms and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. Client’s sole remedy for performance issues with respect to the Rhinogram Sites or the Services shall be any support services Rhinogram is obligated to provide in accordance with these Terms of Service.

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6.2. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RHINOGRAM, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, CONTRACTORS AND OTHER REPRESENTATIVES (THE “RHINOGRAM PARTIES”) PROVIDE THE RHINOGRAM SITES AND THE SERVICES “AS-IS” AND MAKE NO WARRANTIES OF ANY KIND REGARDING THE RHINOGRAM SITES, THE SERVICES OR OTHERWISE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE RHINOGRAM PARTIES EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, THAT THE USE OF THE RHINOGRAM SITES OR THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WITH RESPECT TO ANY CLIENT DATA OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE RHINOGRAM SITES OR THE SERVICES; AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT THERETO. RHINOGRAM WILL NOT BE LIABLE TO CLIENT FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF RHINOGRAM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE.

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6.3. LIMITATION OF WARRANTIES. THE RHINOGRAM PARTIES DO NOT WARRANT THAT THE RHINOGRAM SITES OR THE SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE RHINOGRAM SITES OR THE SERVICES WILL BE COMPATIBLE WITH ANY OTHER SOFTWARE, HARDWARE, OR OTHER MATERIALS, THAT CLIENT CONTENT CAN OR MAY BE DISPLAYED BY CLIENT, OR THAT THE RHINOGRAM SITES OR THE SERVICES OR THE SERVERS THAT MAKE THE RHINOGRAM SITES OR THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND THE RHINOGRAM PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO. CLIENT UNDERSTANDS AND AGREES THAT IF CLIENT USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ANY THIRD-PARTY SERVICES OR CONTENT OR DATA THEREIN, IT IS AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE RHINOGRAM SITES OR THE SERVICES. RHINOGRAM HAS NO CONTROL OVER ANY THIRD-PARTY SERVICES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY, OR RELIABILITY OF THIRD-PARTY SERVICES AVAILABLE IN CONNECTION WITH THE RHINOGRAM SITES OR THE SERVICES. RHINOGRAM PROVIDES ACCESS TO THIRD PARTY SERVICES TO CLIENT “AS-IS” AND ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL, OR FEATURES ON THE RHINOGRAM SITES OR THE SERVICES TO THIRD PARTY SERVICES DOES NOT IMPLY RHINOGRAM AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD-PARTY SERVICES OR ANY CONTENT OR DATA THEREIN. ACCESS AND USE OF THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES IS SOLELY AT CLIENT’S OWN RISK. CLIENT IS SOLELY RESPONSIBLE FOR, AND THE RHINOGRAM PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT TO, THE USE OR DISPLAY OF ANY HEALTH-RELATED DATA OR CLIENT DATA, AND COMPLIANCE WITH ANY REGULATORY OBLIGATIONS RELATED THERETO.

 

7. INDEMNIFICATION. 

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Client shall indemnify, defend and hold the Rhinogram Parties harmless from and against any Damages incurred or suffered by any of them with respect to any breach of any of Client’s representations, warranties or obligations hereunder or any act or omission by Client or any of its authorized users or other personnel that results in Damages. The Rhinogram Parties shall have the right to engage their own counsel in connection with such matters and shall notify Client promptly in writing of any such claim or suit against any of the Rhinogram Parties.

 

8. LIMITATION OF LIABILITY. 

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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY RHINOGRAM PARTIES’ AGGREGATE TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THE RHINOGRAM SITES OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY RHINOGRAM WITH RESPECT TO CLIENT’S SUBSCRIPTION FOR THE SERVICES GIVING RISE TO THE APPLICABLE CLAIM DURING THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THE RHINOGRAM TERMS FAIL THEIR ESSENTIAL PURPOSE.

 

9. TERM AND TERMINATION. 

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9.1. Term. 

(a) Each person or entity using or accessing the Rhinogram Sites without being a party to a Contract hereby agrees to be legally bound by these Terms of Service.  

 

(b) Subject to earlier termination as provided herein or in a Client’s Contract, (i) these Terms of Service will become effective on the “Effective Date” set forth in the Client’s Contract, (ii) each Contract will become effective on the Effective Date and (iii) the initial “Service Term” (as defined and  set forth in the Contract) will commence on the Payment Date and shall thereafter be automatically renewed for consecutive periods of the same duration as the initial Service Term (unless otherwise set forth in the Contract or any amendment thereto) until either party provides written notice of non-renewal thereof at least sixty (60) days prior to the end of the then-current Service Term.

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(c) When a Client adds new or additional locations, offices, departments or subgroups or adds new or additional services or products (“New Services”), the last day of the Service Term for all such Client’s Contracts shall be extended and become the date on which the New Services are added to the Services.  Rhinogram intends to add New Services to the Services effective as of each Client’s Payment Date but if the New Services are added on a different date, Rhinogram shall be entitled to prorate the fees payable by Client through to such Payment Date.

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9.2. Termination.  Each party will have the right to terminate a Contract if the other party breaches any material term or condition of the Rhinogram Terms or the Contract and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay any Fees, which must be cured within fifteen (15) business days after receipt of written notice thereof from Rhinogram.  Either party may also terminate a Contract upon providing written notice to the other party if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

 

9.3. Effect of Termination.  Upon the effective date of the termination of a Contract (or if more than one Contract, the last Contract), Client shall cease all use of the Rhinogram Sites and the Services, and Rhinogram may immediately cease providing the Services.  If requested by Client within thirty (30) days of the termination, Rhinogram shall use reasonable efforts to assist Client in transferring Client’s data to Client or another service provider (such services to be subject to Rhinogram’s customary fees on a time and materials basis unless otherwise set forth in the Contract).  Any and all payment obligations of Client under the Rhinogram Terms shall continue until the effective date of the termination of the Contract. If Client terminates a Contract in breach of the Rhinogram Terms, Client’s payment obligations shall continue until the last day of the Service Term then in effect.

 

9.4. Surviving Provisions. These Terms of Service shall survive the termination or expiration hereof.

 

10. MODIFICATIONS TO RHINOGRAM TERMS. 

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Rhinogram reserves the right, at its discretion, to amend or modify the Rhinogram Terms on a going-forward basis at any time. Client shall be responsible for regularly reviewing the Rhinogram Terms for amendments or modifications. In the event that an amendment or modification to the Rhinogram Terms materially changes Client’s rights or obligations, Rhinogram will make reasonable efforts to provide written or electronic notification to the Client of such amendments or modifications. 

 

 11. GENERAL PROVISIONS. 

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11.1. Relationship. The parties are independent contractors of one another, and the Rhinogram Terms are not intended to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done on behalf of or in the name of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to anyone that it has such power or authority.

 

11.2. Notices. All notices under the Rhinogram Terms shall be in writing and shall be delivered, for notices to Client, to the address set forth in Client’s registration information as provided for use of the Services, and for notices to Rhinogram, to P.O. Box 24655, Chattanooga, TN, 37422, provided that Rhinogram may provide notices to Client via the email address provided at the time of registration or through other similar mechanism(s)

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11.3. Waiver and Severability. No failure or delay by either party in exercising any right under the Rhinogram Terms shall constitute a waiver of that right. If any provision of the Rhinogram Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to effect the original intent to the fullest extent possible, if at all, and the remaining provisions of the Rhinogram Terms shall remain in full force and effect.

 

11.4. Assignment. Client may not assign any of its rights or obligations under the Rhinogram Terms without the prior express written consent of Rhinogram. Rhinogram may assign the Rhinogram Terms together with all rights and obligations hereunder, without restriction, including to a successor entity resulting from a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to the Rhinogram Terms. Any attempt by a party to assign its rights or obligations under the Rhinogram Terms in breach of this section shall be void and of no effect. Subject to the foregoing, the Rhinogram Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

11.5. Governing Law. The Rhinogram Terms shall be governed by and construed in accordance with the laws of the laws of the State of Tennessee without application of conflicts of laws rules or principles. Any dispute relating to the terms, interpretation or performance of the Rhinogram Terms (other than claims for injunctive relief or other equitable remedies) will be submitted at the request of either party to binding arbitration. Arbitration will be conducted in Chattanooga, Tennessee under the rules and procedures of JAMS. The parties will request that JAMS appoint a single arbitrator. Any claims for injunctive or other equitable relief shall be brought and heard in the state or federal courts located in Chattanooga, Tennessee and Client consents to such venue and personal jurisdiction therein for any such proceedings. CLIENT HEREBY IRREVOCABLY WAIVES THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM CLIENT MAY HAVE AGAINST RHINOGRAM INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. A printed version of the Rhinogram Terms and of any notice given in electronic form shall be admissible in any legal proceedings based upon or relating to the Rhinogram Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

 

11.6. Force Majeure. Except for Client’s payment obligations hereunder, neither party will be liable for any failure or delay in its performance under the Rhinogram Terms due to any cause beyond its reasonable control, including act of war, acts of nature (including but not limited to earthquakes, storms, fire and other natural events), embargo, riot, sabotage, terrorism, epidemic, pandemic, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

 

11.7. Integration. The Rhinogram Terms constitute the entire agreement between the parties as to their subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of the Rhinogram Terms, including without limitation, any foreign language translation of the Rhinogram Terms.

 

11.8. Conflicting Provisions. If there is a conflict between the Rhinogram Terms, a Business Associate Agreement or any other applicable agreements, the Business Associate Agreement shall control.  If there is a conflict between a Contract and these Terms of Service, the terms of the Contract shall control.

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Updated: February 27, 2024

Reviewed: February 27, 2024

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