Responsive Cloud Services Terms

Last Updated: 19 January 2024

1. Cloud Service

Subject to the terms of this Agreement, Customer may use the Cloud Service solely for its own business purposes during each Subscription Term (“Permitted Use”). This includes the right to copy and use the Responsive Software (if any) and Documentation as part of Customer’s Permitted Use. Customer must comply with the Documentation in using the Cloud Service.

2. Users

Customer may permit Users to use the Cloud Service on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Cloud Service and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Responsive upon learning of any compromise of User accounts or credentials.

3. Affiliates

Customer’s Affiliates may serve as Users under this Agreement. Alternatively, Customer’s Affiliates may enter into their own Orders as mutually agreed with Responsive, which creates a separate agreement between each such Affiliate and Responsive incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s separate agreement with Responsive, and breach or termination of any such separate agreement affects only that agreement.

4. Data

Use of Customer Data. Subject to this Agreement, Responsive will access and use Customer Data solely to provide and maintain the Cloud Service, Support and Professional Services under this Agreement (“Use of Customer Data”). Use of Customer Data includes sharing Customer Data as Customer directs through the Cloud Service, but Responsive will not otherwise disclose Customer Data to third parties except as permitted in this Agreement.
Security. Responsive will use appropriate industry standard technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data.
DPA. The parties will adhere to the Data Protection Addendum (the "DPA").
Usage Data. Responsive may collect Usage Data and use it to operate, improve and support the Cloud Service and for other lawful business purposes, including benchmarking and reports. However, Responsive will not disclose Usage Data externally unless it is (a) de- identified so that it does not identify Customer, its Users or any other person and (b) aggregated with data across other customers.. The parties will adhere to the Data Protection Addendum (the “DPA”).

5. Support and SLA

Support. Responsive will provide Support for the Cloud Service as stated in the “Support Terms”.
SLA. The Service Level Agreement (the “SLA”) shall apply to the Cloud Service.. Responsive will use appropriate industry standard technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data.

6. Warranties

Mutual Warranties. Each party represents and warrants that:
1. it has the legal power and authority to enter into this Agreement,
2. it will comply with all Laws that apply to its performance under this Agreement and
3. it will use industry-standard measures to avoid introducing Viruses into the Cloud Service.
Additional Responsive Warranties. Responsive warrants that:
1. the Cloud Service will perform materially as described in the Documentation and Responsive will not materially decrease the overall functionality of the Cloud Service during a Subscription Term (the “Performance Warranty”), and
2. any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).
Warranty Remedy. Responsive will use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer. If Responsive fails to do so within 30 days after Customer's warranty report (“Fix Period”), then either party may terminate the Order as relates to the non-conforming Cloud Service or Professional Services, in which case Responsive will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Cloud Service or 30 days after delivery of the relevant Professional Services (“Claim Period”). These procedures are Customer’s exclusive remedies and Responsive’s sole liability for breach of the Performance Warranty or Professional Services Warranty.
Disclaimers. Except as expressly set out in this Agreement, each party disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title and noninfringement. Responsive’s warranties in this Section 6 do not apply to issues arising from Third Party Platforms or misuse or unauthorized modifications of the Cloud Service. These disclaimers apply to the full extent permitted by Law.

7. Usage Rules

Compliance. Customer (a) will comply with the Acceptable Use Policy (“AUP”) and (b) represents and warrants that it has all rights necessary to use Customer Data with the Cloud Service and grant Responsive the rights to Customer Data specified in this Agreement, without violating third-party intellectual property, privacy or other rights. Between the parties, Customer is responsible for the content and accuracy of Customer Data.
High Risk Activities & Sensitive Data. Customer:
1. will not use the Cloud Service for High Risk Activities,
2. will not submit Sensitive Data to the Cloud Service or otherwise make Sensitive Data available to Responsive, and
3. acknowledges that the Cloud Service is not designed for (and Responsive has no liability for) use prohibited in this Section 7.2.
Restrictions. Customer will not and will not permit anyone else to: (a) sell, sublicense, distribute or rent the Cloud Service (in whole or part), grant non-Users access to the Cloud Service or use the Cloud Service to provide a hosted or managed service to others, (b) reverse engineer, decompile or seek to access the source code of the Cloud Service, except to the extent these restrictions are prohibited by Laws and then only upon advance notice to Responsive, (c) copy, modify, create derivative works of or remove proprietary notices from the Cloud Service, (d) conduct security or vulnerability tests of the Cloud Service, interfere with its operation or circumvent its access restrictions or (e) use the Cloud Service to develop a product that competes with the Cloud Service.

8. Third-Party Platforms

Customer may choose to enable integrations or exchange Customer Data with Third-Party Platforms. Customer’s use of a Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement, and Responsive is not responsible for Third-Party Platforms or how their providers use Customer Data.

9. Professional Services

Responsive will perform Professional Services as described in an Order or Statement of Work (if present), which may identify additional terms or milestones for the Professional Services. Customer will give Responsive timely access to Customer Materials reasonably needed for Professional Services, and Responsive will use the Customer Materials only for purposes of providing Professional Services. Subject to any limits in an Order or Statement of Work, Customer will reimburse Responsive’s reasonable travel and lodging expenses incurred in providing Professional Services. Customer may use code or other deliverables that Responsive furnishes as part of Professional Services only in connection with Customer’s authorized use of the Cloud Service under this Agreement.

10. Fees

Payment. Customer will pay the fees described in the Order, if present. Unless the Order states otherwise, all amounts are due within 30 days after the invoice date (the “Payment Period”). Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as expressly set out in this Agreement.
Taxes. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Responsive’s income tax. Fees and expenses are exclusive of Taxes.
Payment Disputes. If Customer disputes an invoice in good faith, it will notify Responsive within the Payment Period and the parties will seek to resolve the dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue any available remedies.

11. Suspension

Responsive may suspend Customer’s access to the Cloud Service and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. Responsive is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved, Responsive will promptly restore Customer’s access to the Cloud Service in accordance with this Agreement. “Suspension Event” means (a) Customer’s account is 30 days or more overdue, (b) Customer is in breach of Section 7 (Usage Rules) or (c) Customer’s use of the Cloud Service risks material harm to the Cloud Service or others.

12. Terms and Termination

Subscription Terms. Each Subscription Term will last for an initial 12-month period unless the Order states otherwise. Each Subscription Term will renew only upon mutual written agreement of the parties.
Term of Agreement. This Agreement starts on the Effective Date and continues until the end of all Subscription Terms, unless sooner terminated in accordance with its terms. If no Subscription Term is in effect, either party may terminate this Agreement for any or no reason with notice to the other party.
Termination. Either party may terminate this Agreement (including all Subscription Terms) if the other party (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
Data Export & Deletion
1. During a Subscription Term, Customer may export Customer Data from the Cloud Service (or Responsive will otherwise make the Customer Data available to Customer) as described in the Documentation.
2. After termination or expiration of this Agreement, within 60 days of request, Responsive will delete Customer Data and each party will delete any Confidential Information of the other in its possession or control.
3. Nonetheless, the recipient may retain Customer Data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to Section 4.2 (Security), Section 18 (Confidentiality) and any DPA.
Effect of Termination
1. Customer’s right to use the Cloud Service, Support and Professional Services will cease upon any termination or expiration of this Agreement, subject to this Section 12.
2. The following Sections will survive expiration or termination of this Agreement: 4.4 (Usage Data), 6.4 (Disclaimers), 7 (Usage Rules), 10.1 (Payment) (for amounts then due), 10.2 (Taxes), 12.4 (Data Export & Deletion), 12.5 (Effect of Termination), 13 (Intellectual Property), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 18 ((General Terms) and 19 (Definitions).
3. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

13. Intellectual Property

Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Responsive’s express rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data and Customer Materials provided to Responsive. Except for Customer’s express rights in this Agreement, as between the parties, Responsive and its licensors retain all intellectual property and other rights in the Cloud Service, Professional Services deliverables and related Responsive technology.
Feedback. If Customer gives Responsive feedback regarding improvement or operation of the Cloud Service or any other Services (collectively, “Feedback”), Responsive shall own all rights, title, and interest in and to all Feedback, and Customer hereby assigns to Responsive such ownership. Accordingly, Responsive may freely use Feedback without restriction or obligation.

14. Limitations of Liability

General Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed the General Cap.
Consequential Damages Waiver. Neither party will have any liability arising out of or related to this Agreement for indirect, special, incidental, reliance or consequential damages or damages for loss of use, lost profits or interruption of business, even if informed of their possibility in advance.
Exceptions and Enhanced Cap. Sections 14.1 (General Cap) and 14.2 (Consequential Damages Waiver) will not apply to Enhanced Claims or Uncapped Claims. For all Enhanced Claims, each party’s entire liability will not exceed the Enhanced Cap.
Nature of Claims. The waivers and limitations in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
Liability Definitions
1. “Enhanced Cap” means two times (2x) the General Cap.
2. “Enhanced Claims” means Responsive’s breach of Section 5.2 (Security) or either party’s breach of Section 5.3 (DPA).
3. “General Cap” means amounts paid or payable by Customer to Responsive under this Agreement in the 12 months immediately preceding the first incident giving rise to liability.
4. “Uncapped Claims” means (a) the indemnifying party’s obligations under Section 15 (Indemnification), (b) either party’s infringement or misappropriation of the other party’s intellectual property rights, (c) any breach of Section 16 (Confidentiality), excluding breaches related to Customer Data and (d) liabilities that cannot be limited by Law.

15. Indemnification

Indemnification by Responsive. Responsive, at its own cost, will defend Customer from and against any Responsive-Covered Claims and will indemnify and hold harmless Customer from and against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Responsive resulting from the Responsive-Covered Claims.
Indemnification by Customer. Customer, at its own cost, will defend Responsive from and against any Customer-Covered Claims and will indemnify and hold harmless Responsive from and against any damages or costs awarded against Responsive (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the Customer-Covered Claims.
Indemnification Definitions.
1. “Customer-Covered Claim” means a third-party claim arising from Customer’s breach or alleged breach of Section 7.1
2. (Compliance) or 7.2 (High-Risk Activities & Sensitive Data).
3. “Responsive-Covered Claim” means a third-party claim that the Cloud Service, when used by Customer as authorized in this Agreement, infringes or misappropriates a third party’s intellectual property rights.
Procedures. The indemnifying party’s obligations in this Section 15 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defense and settlement and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Cloud Service when Responsive is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as Responsive determines necessary to avoid material liability, Responsive may: (a) procure rights for Customer’s continued use of the Cloud Service, (b) replace or modify the allegedly infringing portion of the Cloud Service to avoid infringement, without reducing the Cloud Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
Exceptions. Responsive’s obligations in this Section 15 do not apply to claims resulting from (a) modification or unauthorized use of the Cloud Service, (b) use of the Cloud Service in combination with items not provided by Responsive, including Third-Party Platforms or (c) Responsive Software other than the most recent release, if Responsive made available (at no additional charge) a newer release that would avoid infringement.
Exclusive Remedy. This Section 15 sets out Customer’s exclusive remedy and Responsive’s sole liability regarding third-party claims of intellectual property infringement or misappropriation.

16. Confidentiality

Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as expressly permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.
Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Responsive, the subcontractors referenced in Section 20.10), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.
Exclusions. The confidentiality obligations set forth in this Section 16 do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.
Remedies. Breach of this Section 16 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.
Required Disclosures. The recipient may disclose Confidential Information (including Customer Data) to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.

17. Trials and Betas

Responsive may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated by Responsive on the Order (or if not designated, 30 days). Either party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. Notwithstanding anything in this Agreement, Responsive offers no warranty, indemnity, SLA, or Support for Trials and Betas and its liability for Trials and Betas will not exceed US$100.

18. General Terms

Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
Governing Law and Courts. The laws of the state of California governs this Agreement and any action arising out of or relating to this Agreement, without reference to conflict of law rules. The parties will adjudicate any such action in the state or federal courts located in Santa Clara County, California, and each party consents to the exclusive jurisdiction and agrees that venue of such courts is proper for these purposes.
Notices
1. Except as set out in this Agreement, notices, requests and approvals under this Agreement must be in writing to the party’s address set forth at the end of this Agreement and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered U.S. mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. Either party may update its address with notice to the other.
2. Responsive may also send operational notices through the Cloud Service.
Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Excluding Orders, terms in business forms, purchase orders or quotes used by either party will not amend or modify this Agreement; any such documents are for administrative purposes only. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
Order of Precedence. These Terms, including any appendices, will take precedence over any conflicting term in an Order unless the Order specifically identifies the provisions that it supersedes.
Amendments. Any amendments to this Agreement must be in writing and signed by each party’s authorized representatives.
Operational Changes. With notice to Customer, Responsive may modify the Support Terms, SLA, DPA, or AUP, however, except as required to comply with Laws, such modifications may not materially decrease Responsive’s overall obligations during a Subscription Term.
Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
Force Majeure. Neither party is liable for a delay or failure to perform this Agreement due to a Force Majeure. If a Force Majeure materially adversely affects the Cloud Service for 15 or more consecutive days, either party may terminate the affected Order(s) upon notice to the other and Responsive will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. However, this Section does not limit Customer’s obligations to pay fees owed.
Subcontractors. Responsive may use subcontractors and permit them to exercise its rights and fulfill its obligations, but Responsive remains responsible for their compliance with this Agreement and for its overall performance under this Agreement. This does not limit any additional terms for subprocessors under a DPA.
Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Open Source. Responsive Software distributed to Customer (if any) may include third-party open source software (“Open Source”) as listed in the Documentation or by Responsive upon request. If Customer elects to use the Open Source on a stand-alone basis, that use is subject to the applicable Open Source license and not this Agreement.
Export. Each party (a) will comply with all export and import Laws in performing this Agreement and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” country. Customer will not submit to the Cloud Service any data controlled under the U.S. International Traffic in Arms Regulations.
Government Rights. To the extent applicable, the Cloud Service is “commercial computer software” or a “commercial item” for purposes of FAR 12.212 for and DFARS 227.7202. Use, reproduction, release, modification, disclosure or transfer of the Cloud Service is governed solely by the terms of this Agreement, and all other use is prohibited.

18. Definitions

“Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.
“Cloud Service” means Responsive’s proprietary cloud service, as identified in the relevant Order and as modified from time to time. The Cloud Service includes the Responsive Software and Documentation but not Professional Services deliverables or Third-Party Platforms.
“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Responsive’s Confidential Information includes technical or performance information about the Cloud Service, and Customer’s Confidential Information includes Customer Data.
“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Cloud Service accounts, including from Third-Party Platforms.
“Customer Materials” means materials and resources that Customer makes available to Responsive in connection with Professional Services.
“Documentation” means Responsive’s standard usage documentation for the Cloud Service.
“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.
“High Risk Activities” means activities where use or failure of the Cloud Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.
“Laws” means all applicable laws, regulations, rules, court orders or other binding requirements of a government authority.
“Order” means an order for Customer’s access to the Cloud Service, Support, Professional Services or related services that is executed by the parties and that references and attaches these Terms as Exhibit A.
“Personal Data” means Customer Data relating to an identified or identifiable natural person.
“Professional Services” means training, migration or other professional services that Responsive furnishes to Customer related to the Cloud Service.
“Responsive Software” means any proprietary apps or software that Responsive distributes to Customer as part of the Cloud Service.
“Sensitive Data” means (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit, bank account or other financial account numbers, social security numbers, driver’s license numbers or other government ID numbers and (d) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation.
“Services” means the Cloud Service, Professional Services, and any other services provided by Responsive to Customer under this Agreement.
“Statement of Work” means a statement of work for Professional Services that is executed by the parties and references this Agreement.
“Subscription Term” means the term for Customer’s use of the Cloud Service as identified in an Order. “Support” means support for the Cloud Service as described in Section 5.1 (Support).
“Third-Party Platform” means any product, add-on or platform not provided by Responsive that Customer uses with the Cloud Service.
“Trials and Betas” means access to the Cloud Service (or Cloud Service features) on a free, trial, beta or early access basis.
“Usage Data” means Responsive’s technical logs, data and learnings about Customer’s use of the Cloud Service, but excluding Customer Data.
“User” means anyone that Customer allows to use its accounts for the Cloud Service, who may include (a) employees, advisors and contractors of Customer and its Affiliates and (b) others if permitted in this Agreement, the Documentation or an Order.
“Virus” means viruses, malicious code or similar harmful materials.