These Terms of Service (“Terms”) applies to your (“User” or “you”) access to and use of the Rose platform, and other online products and services (collectively, the “Services”) provided by Rose Technology Incorporated (“Rose,” “we” or “us).
By accessing or using the Services you agree to be bound by these Terms. If you do not agree to these Terms, you may not access or use our Services.
Rose will provide you with access to the Rose Platform, which will enable you to create, process and view lines of data using RoseLang, and which includes the Rose Marketplace, which will enable you to view, buy and sell lines of data created using RoseLang (collectively all of the foregoing, the “Services”).
Subject to and conditional upon your compliance with the terms of these Terms, Rose grants you anon-transferable, non-exclusive, revocable, limited license to use and access the Services solely as permitted by these Terms. Rose reserves all rights not granted in this Section.
Your license does not include the right to:
license, sell, transfer, assign, distribute, host, or otherwise commercially exploit the Services; modify, prepare derivative works of, disassemble, decompile, or reverse engineer any part of the Services; access the Services in order to build a similar or competitive website, product, or service; remove, obscure or alter any proprietary notices associated with the Services; or use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner.
We reserve the right to modify, suspend, or discontinue the Services (in whole or in part) at any time, with or without notice to you. Any future release, update, or other addition to functionality of the Services will be subject to these Terms, which may be updated from time to time.
By buying or selling lines of data created using RoseLang (hereinafter “RoseLang Transformed Data”) in the Rose Marketplace, you agree to be bound by the following:
Any sale of RoseLang Transformed Data outside of the Rose Platform is grounds for immediate termination of these Terms, at Rose’s sole discretion.
In any sale of RoseLang Transformed Data that may result in the access of non-public, third-party data, Buyer and Seller each warrant to Rose that the transfer does not violate any applicable agreement or infringe any third-party’s intellectual property or other proprietary rights.
Buyer agrees and understands that Seller provides RoseLang Transformed Data as-is and makes no representation or warranty of any kind. Buyer agrees and understands that Seller shall in no event be liable to a Buyer for any incidental, consequential, special or exemplary damages, or for any cost of procuring substitute goods or services, any loss of use, data or profits, or any interruption of business damages, arising out of a sale of RoseLang Transformed Data, and that the aggregate liability of a Seller to a Buyer of RoseLang Transformed Data shall not exceed the amounts paid by Buyer to Seller for said RoseLang Transformed Data during the three (3) months prior to the event resulting in liability.
Any Buyer of RoseLang Transformed Data represents to the Seller of said Data that Buyer has permission to access any underlying data in said RoseLang Transformed Data.
Buyers and Sellers of RoseLang Transformed Data shall abide by any applicable terms of sale presented in the Rose Marketplace (“Terms of Sale”). In the event a Seller does not fulfill its commitments in the Terms of Sale, Rose may, at its sole discretion, reverse all or a portion of the sale.
Rose exclusively owns and retains all right, title, and interest in and to the Rose Platform, RoseLang and all related software, code, services and technology, and all documentation or other related materials and intellectual property in connection therewith, and all derivative works therefrom, and/or any other Rose application (the “Rose Intellectual Property”). Notwithstanding anything else herein, nothing in this Section shall be considered a grant to User or any other third party of any right, title or interest in or to Rose Intellectual Property, subject only to the express licensing terms and restrictions set forth herein, as Rose is and shall remain the sole owner of such Rose Intellectual Property and all modifications and derivative works thereto. No transfer of intellectual or other property is intended or shall be effective under these Terms except as specifically provided.
Any ideas, suggestions, and feedback about our Services that you provide to us are entirely voluntary, and you agree that we may use such ideas, suggestions, and feedback without compensation or obligation to you.
The term “Confidential Information” shall mean any information disclosed, directly or indirectly, in writing, orally, or by any other means, to a Party to these Terms (the “Receiving Party”) by the other Party to these Terms (the “Disclosing Party”) either prior to, on, or after the Effective Date. Such Confidential Information includes, but is not limited to, Rose data, product proposals, technological processes, product forecasts, trade secrets, pre-publication patent applications, product designs, pricing information and rate cards, software designs, hardware or system designs, technology specifications, source code, object code, graphic designs, customer data, proprietary financial information, systems architecture, and systems functionalities. Confidential Information shall also include all copies, summaries and extracts of any Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which the Receiving Party can document: (A) is in the public domain and is readily available at the time of disclosure or which thereafter enters the public domain and is readily available, through no improper action or inaction by the Receiving Party or any employee or independent contractor thereof; (B) was in the possession of the Receiving Party or known by it prior to receipt from the Disclosing Party; (C) was rightfully disclosed to the Receiving Party by a third party without restriction; (D) is independently developed by the Receiving Party without access to such Confidential Information; (E) is disclosed with the Disclosing Party’s prior written consent; or (F) is required by judicial or administrative order or subpoena to be disclosed, provided that the Receiving Party gives the Disclosing Party prompt written notice of such order or subpoena in order to allow the Disclosing Party sufficient time to obtain a protective order.
The Receiving Party agrees: (a) to use the Confidential Information only in connection with these Terms; (b) to retain the Confidential Information in confidence; (c) to take all necessary actions to protect such Confidential Information, including, without limitation all actions that the Receiving Party employs with respect to its own confidential materials of a similar nature; (d) not to disclose, directly or indirectly, any Confidential Information, any evaluation of the Confidential Information, or any information derived therefrom to any third party; and (e) not to copy, reverse engineer, reverse compile, nor attempt to derive the composition or underlying information of any Confidential Information.
Confidential Information shall only be disclosed to the Receiving Party’s employees, independent contractors, and financial and legal professionals acting under a legal duty not to disclose User information, and only to the extent such employees, independent contractors, and financial and legal professionals have a specific need to know Confidential Information to carry out the purposes and intent of these Terms. The Receiving Party will ensure that its employees and independent contractors who have access to the Confidential Information shall be under obligation, as a condition of employment or otherwise, that ensures the use, title and nondisclosure obligations of such Confidential Information as set forth herein.
The Disclosing Party shall at all times retain title to, ownership of and all rights and control over the Confidential Information. Except as provided herein, no right or license to the Confidential Information is granted under these Terms. The Receiving Party shall upon termination or expiration of the Agreement and at any other time upon the written request of the Disclosing Party promptly return or destroy all Confidential Information to the Disclosing Party. Neither Party shall make any copies of any Confidential Information of the other Party except as necessary to perform its obligations under these Terms.
Each Party acknowledges that the Disclosing Party asserts that the Confidential Information is unique and valuable and that disclosure in breach of these Terms may result in irreparable injury to the Disclosing Party for which monetary damages alone would not be an appropriate remedy. The Parties agree that in the event of a breach or threatened breach of these Terms, the Disclosing Party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without being required to post a bond or other security. Any such relief shall be in addition to and not in lieu of any appropriate relief by of monetary damages.
You may terminate these Terms at any time and for any reason by deleting your Account and discontinuing your use of all Services. If you stop using the Services without deactivating your Accounts, your Accounts may be deactivated due to prolonged inactivity.
We may suspend or terminate your Accounts, or ability to access or use the Services at any time for any or no reason, including for a violation of these Terms.
Sections 2, 3, 4, 6, 7, 8 and 9 will survive termination or expiration of these Terms. Termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, which a Party may have under these Terms or which may arise out of or in connection with such termination or expiration.
You warrant to Rose that: (A) the execution and delivery by you of these Terms and the performance of your obligations hereunder do not conflict with your organizational documents or any US or international law, regulation, agreement, court order or other obligation applicable to you or by which you are bound or subject to; (B) these Terms have been duly authorized, executed and delivered by you and is legal, valid and binding upon you and is enforceable in accordance with its terms; (C) you have the legal right, power and authority to enter into these Terms and; (E) at all times, your use of the Services shall comply with all applicable laws, regulations and codes of practice.
ALL CODE, MATERIALS, AND SERVICES ARE PROVIDED AS-IS. EXCEPT AS SET FORTH EXPLICITLY IN THIS AGREEEMENT, ROSE MAKES NO REPRESENTATION OR OTHER WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND IT SPECIFICALLY DISCLAIMS THE SAME. ROSE IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS, USE OR MISUSE OF LOGIN ID’S OR UNAUTHORIZED ACCESS TO PASSWORDS UNLESS SPECIFICALLY CAUSED BY ROSE.
Rose will have no liability or obligation under these Terms with respect to a claim based on: (A) your breach of these Terms; (B) any unauthorized use or other exploitation by you of Rose code, the Rose Platform or Services; (C) the combination, operation or use of the Rose code, the Rose Platform or the Services by you with other products, hardware, software, or materials; (D) use or operation of the Rose code, the Rose Platform or Services after your receipt of written notice from Rose that you should cease use of the same due to the threat of an infringement claim; or (E) use or operation of the Rose code, the Rose Platform or the Services after the termination or expiration of these Terms. The foregoing clauses (A) to (E) are collectively referred to as “User-Generated Claim(s)”.
You will defend and settle at your own expense, any action or other proceeding brought against Rose, to the extent that such action or proceeding is based on a: (i) breach of your warranties hereunder; (ii) breach of a RoseData Buy-Sell Agreement; (iii) third-party claim that Rose’s provision of the Services or your actions violate any laws or regulations, privacy policy or any third party’s rights in respect of data protection or personal privacy; or (iv) User-Generated Claim. User will pay all costs, damages and expenses (including reasonable legal fees) incurred by Rose with respect to any such action or proceeding attributable to any such claim.
The obligation to defend and indemnify provided under Section 7.2 shall apply only if: (i) Rose notifies User in writing of any potential claim within a reasonable time; (ii) Rose provides the User with reasonable assistance requested by the User, at the User’s expense, for the defense and settlement of any claim; and (iii) Rose provides the User with the exclusive right to control and the authority to defend and settle any claim.
IN NO EVENT SHALL ROSE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ANY LOSS OF USE, DATA OR PROFITS, OR ANY INTERRUPTION OF BUSINESS DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ROSE WILL NOT BE RESPONSIBLE FOR ANY MALFUNCTIONS, ERRORS, INACCURACIES, OR IMPROPER RESULTS ATTRIBUTABLE TO USER’S INCORRECT, UNAUTHORIZED, OR UNSUPPORTED USE OF ANY CODE OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE AGGREGATE LIABILITY OF ROSE WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO ROSE HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO THE EVENT RESULTING IN LIABILITY. SAVE IN RESPECT OF ANY LIABILITY WHICH MAY NOT BE LIMITED OR EXCLUDED BY LAW AND A PARTY’S INDEMNITY OBLIGATIONS, THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, AND WHETHER OR NOT ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Neither Party may assign these Terms, except that either Party may assign all of its rights and obligations under these Terms to an affiliate or successor-in-interest as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of it business or assets to which these Terms relates. Subject to the above restrictions on assignment, these Terms shall inure to the benefit of and bind the successors and assigns of the Parties. Any attempted assignment in derogation of this Section will be null and void.
The Parties will execute such documents, render such assistance, and take such other actions as reasonably requested to apply for, register, perfect, confirm, and protect the other Party’s rights as described in Sections 2, 3 and 4.
Actual or threatened breach of Sections 3 or 4 may cause immediate, irreparable harm to Rose that may be difficult to calculate and may not be remedied by the payment of damages alone. Accordingly, Rose shall be entitled to preliminary and permanent injunctive relief and other equitable relief for any such breach.
If any dispute arises in connection with these Terms (save in respect of a dispute concerning payment of Fees, to which this Section shall not apply), each Party shall be entitled to notify the other Party and the dispute shall be escalated to senior executive level. The senior executives shall meet within seven (7) days in an effort to resolve the dispute. If the dispute cannot be resolved by the senior executives, the Parties will in good faith attempt to resolve the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. Unless otherwise agreed between the Parties, the mediator will be nominated by the AAA. To initiate the mediation, a Party must give notice in writing to the other Party, requesting mediation and setting out the reasons for the request. Except as set forth in this Section, no court proceedings may be filed before such mediation occurs. Nothing in this Section shall prevent a Party from seeking immediate injunctive relief regarding alleged breach of Sections 3 or 4 of these Terms.
The Parties expressly agree that they are independent contractors and do not intend for these Terms to be interpreted as a relationship of employment, joint venture or partnership. Neither Party’s waiver of the breach of any provision shall constitute a waiver of that provision in that or any other instance. These Terms may not be modified, in whole or in part, except in writing, signed by both Parties. These Terms contains the entire understanding of the Parties relating to the subject matter and supersedes all prior agreements and contemporaneous and understandings, both written and oral, regarding such subject matter. If any term of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall continue in full force and effect, and the Parties shall substitute a valid, enforceable provision with the same intent and economic effect. These Terms will be interpreted in accordance with its terms and without any strict construction in favor of or against either Party. These Terms may be executed by facsimile signature or in any number of counterparts each of which when executed shall be an original but all the counterparts together shall constitute one and the same instrument.
The Parties do not intend any third party to have the right to enforce any provision of these Terms, except that any member of Rose’s group of companies (if applicable) shall have the right to enforce these Terms to the extent to which it relates to the Rose Platform and/or the provision of the Services.
These Terms shall be governed by and construed in accordance with the laws of the State of New York without regard to or application of conflicts of law rules or principles.