RISINGTIDE.US TERMS OF SERVICE
Last Revised: March 10, 2024
The website located at www.risingtide.us (the “Site”) is a copyrighted work belonging to Rising Tide Analytics, LLC, a Virginia limited liability company (“Rising Tide”, “us”, and “we”). Rising Tide provides a blockchain-enabled, artificial intelligence application in the logistics and services industries to customers seeking to automate operations and empower frontline workers (“you”) (collectively, the Site and the services offered therein, the “Services”). Rising Tide and you are sometimes referred to individually as a “party” and collectively as the “parties”.
By using the Site, opening an Account (defined below) or using or receiving any Services, you agree to be bound by these Terms of Service (the “Agreement”) and any future amendments and additions to this Agreement as specified in Section 12.1 below. If you are using the Site on behalf of an entity, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to this Agreement.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, INCLUDING THE AMOUNT OF ANY RECOVERABLE DAMAGES.
1. SERVICES DESCRIPTION.
1.1 General. Rising Tide provides a blockchain-enabled, artificial intelligence application in the logistics and services industries to customers seeking to automate their business operations. “User” means any user of the Services.
1.2 Conflict. If there is a conflict between the terms of this Agreement and the terms of any purchase order, invoice, or the like (such documents collectively, “Other Agreements”), the terms of this Agreement will control, unless such Other Agreements expressly state that a specific provision of this Agreement will be superseded by a specific provision of such Other Agreements.
2. RIGHT TO ACCESS and USE.
2.1 Accounts. In order to use certain features of the Services, you must register for an account with Rising Tide (“Account”) and provide certain information as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login credentials (“Access Credentials”) and are fully responsible for all activities that occur under your Account. You agree to immediately notify Rising Tide of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Rising Tide cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You agree that any street address you provide with your Account information will be maintained and up to date, and that delivery of papers by first class U.S. mail, email or notice via Account messaging functionality constitutes service of process (1) for any dispute with Rising Tide and (2) for any other notice relating to your use of the Services. Sharing of Access Credentials between Users is prohibited. No User may take actions which result in the User’s access, or attempts to access, the Services from more than one computer at any one time. Rising Tide reserves the right, in its sole discretion and without liability to you, to take any action Rising Tide deems necessary or reasonable to ensure the security of the Site and User’s Access Credentials, including terminating User’s access, requiring password changes, or requesting additional information to authorize activities related to an Account. You are solely responsible for: (a) the security and proper use of any Access Credentials, and must take all steps necessary to ensure that Access Credentials are kept secure, confidential, used properly and not disclosed to unauthorized persons; and (b) all activities and charges incurred in connection with Access Credentials, and activity taking place under such Access Credentials, where such charges and activities were originated using
Access Credentials of your Users. Rising Tide is authorized to accept Access Credentials as conclusive evidence that you, or your Users, have accessed or otherwise used the Site or the Services.
2.2 Site. Subject to the terms of this Agreement, Rising Tide grants you a non-transferable, non-exclusive right to access and use the Site for your internal business purposes (e.g., no resale, service bureau, co-branding or white labeling) during the term of this Agreement.
2.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you may not license, sell, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) you may not modify, make derivative works of, reverse compile or reverse engineer any part of the Services; (c) you may not access the Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to the functionality of the Services is subject to the terms of this Agreement. All copyright and other proprietary notices on any content on the Services must be retained on all copies thereof which you have been authorized by Rising Tide to make.
3. OWNERSHIP.
3.1 Ownership. Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, service marks and trade secrets in the Services (“IP Rights”) are owned by Rising Tide. The provision of the Services pursuant to the limited access and use rights granted to you herein does not transfer to you or any third party any ownership rights, title or interest in or to such IP Rights. Rising Tide and its licensors reserve all rights not specifically granted in this Agreement.
3.2 Modification. Rising Tide reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof without notice; provided, however, that if Rising Tide suspends or discontinues essential and material functionality which materially impedes your ability to perform your obligations, Rising Tide will use reasonable efforts to provide you prior notice of such suspension or discontinuance. Notwithstanding the foregoing, Rising Tide may immediately suspend or discontinue the Services immediately without notice to (a) comply with any applicable law or regulatory or other governmental order, or (b) minimize Rising Tide’s legal exposure to a third party threat, in which case Rising Tide will use reasonable efforts to provide you notice of such action as soon as reasonably practicable.
3.3 Feedback. If you provide Rising Tide any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Services (“Feedback”), you hereby assign to Rising Tide all rights in the Feedback and agree that Rising Tide shall have the right to use such Feedback and related information in any manner without any obligation to you. If you agree to participate in any case studies, you agree that information you provide in connection with the case study is deemed Feedback and that Rising Tide may use your name in connection with such Feedback.
4. USER CONTENT.
4.1 User Content. “User Content” means any and all information, data, and content, other than that provided by Rising Tide, which a User submits to, or uses with, the Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. For the avoidance of doubt, User Content may include third party content you submit. You agree not to submit third party content unless you have the consent of the applicable third party owner of such content. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Rising Tide. You acknowledge and agree that we are not responsible for verifying the accuracy or truthfulness of any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content.
4.2 License. By submitting any content (including without limitation, any photograph, words, pictures, or symbols) or information to us in connection with your registration for and use of the Services, including User Content, you grant us a worldwide, non-exclusive, royalty-free license, sub-licensable through multiple tiers, to use, reproduce, display, distribute, and promote such content and information in any form, in all media now known or hereinafter created and for the purpose of providing the Services to you. We may modify your content and information as necessary to provide the Services to you. The license granted in this paragraph shall terminate when this Agreement terminates or you cancel your Account.
4.3 Acceptable Use Policy; Privacy Policy. You may not post or submit any content that (a) infringes the copyright, trademark, patent or other intellectual property rights of any person, or which infringes on any person’s right of personality or publicity; (b) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable;; (c) is misleading, untrue, inaccurate or false; (d) provides a link to any other websites, (e) would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national, or international law; (f) content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Rising Tide; (g) constitutes or contains viruses, corrupted data, or other harmful, disruptive, or destructive files; or (h) in the sole judgment of Rising Tide, (i) violates the terms of this Agreement (ii) restricts or inhibits any other person from using or enjoying the Site or the Services, or (iii) may expose Rising Tide or its or their users and/or customers to any harm or liability of any type. Certain information you may post (e.g., personally identifiable information) may be subject to our Privacy Policy located at https://www.RisingTide.US/privacy, which is incorporated herein by reference.
4.4 No Obligation to Post Content. We have no obligation to make publicly viewable or accessible any content that you provide to us or through the Services. In addition, we may edit (as necessary to provide the Services, e.g., to reformat your content for display on the Site), remove or delete any content that you submit to us or through the Services. Moreover, we reserve the right (but have no obligation) in our sole discretion to review any User Content, investigate, and/or take appropriate action against you (including removing or modifying your User Content, terminating your Account in accordance with this Agreement, and/or reporting you to law enforcement authorities) if you violate this Agreement or otherwise create potential liability for us or any other person.
5. TERM AND TERMINATION. This Agreement will remain in full force and effect while you use the Services or otherwise maintain an active Account unless terminated in accordance with this Section 5. Rising Tide may terminate this Agreement immediately, with or without notice, if you breach this Agreement (“Cause”). Rising Tide may terminate this Agreement without Cause upon forty-eight (48) hours prior notice to you. Upon termination of this Agreement, your right to access your Account and to use the Services will terminate immediately. Rising Tide will not have any liability whatsoever to you for any termination of this Agreement in accordance with this Section, including for termination of your access to your Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.3 and 3 through 12, and all other provisions that by their nature should survive termination.
6. INDEMNITY.
6.1 By You. You will defend, indemnify and hold Rising Tide and its officers, directors, managers, members, employees, and agents (each a “Rising Tide Indemnitee”) harmless, including the payment of the Rising Tide Indemnitee’s reasonable attorneys’ fees, of and from any claim or demand made by any third party due to or arising out of your: (i) use of the Services; (ii) User Content; (iii) interaction with any other User; (iv) violation of this Agreement; or (v) violation of any applicable law or regulation. You will not settle any claim that imposes any obligation or liability on Rising Tide without the prior written consent of Rising Tide (such consent shall not be unreasonably withheld, conditioned or delayed). Rising Tide will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6.2 By Rising Tide. Rising Tide will defend, indemnify and hold you and your officers, directors, employees, and agents (each, a “Customer Indemnitee”) harmless, including the payment of each Customer Indemnitee’s reasonable attorneys’ fees, of and from any claim or demand made by any third party due to or arising out (i) any claim that the Services infringes the intellectual property rights of the third party asserting the claim; (ii) Rising Tide’s violation of this Agreement; or (iii) Rising Tide’s violation of any applicable law or regulation. Rising Tide will not settle any claim that imposes any obligation or liability on you without your prior written consent (such consent shall not be unreasonably withheld, conditioned or delayed). You will use reasonable efforts to notify Rising Tide of any such claim, action or proceeding upon becoming aware of it.
7. WARRANTIES. You represent, warrant and covenant that: (a) you have the right and authority to enter into this Agreement; (b) by entering into this Agreement, you will not violate, conflict with or cause a material default under any other agreements; and (c) you will comply with all applicable laws, rules and regulations in connection with your use of the Services.
8. WARRANTY DISCLAIMERS AND RELEASE.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE EXPRESSLY DISCLAIM ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, UNINTERRUPTED OR ERROR-FREE USE OR SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES. OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
BY USING THE SERVICES, YOU MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. YOUR INTERACTIONS WITH OTHER USERS AND THIRD PARTIES ARE SOLELY BETWEEN YOU AND SUCH USERS OR THIRD PARTIES. YOU AGREE THAT RISING TIDE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER OR THIRD PARTY, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED.
YOU HEREBY RELEASE RISING TIDE (AND ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, INSURERS AND ASSIGNS) OF AND FROM, AND HEREBY WAIVE AND RELINQUISH, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), ARISING FROM YOUR USE OF THE SERVICES, AND/OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES ON THE SITE OR THE SERVICES. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION ON LIABILITY.
IN NO EVENT SHALL RISING TIDE OR ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, INSURERS AND ASSIGNS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (COLLECTIVELY “CONSEQUENTIAL DAMAGES”) ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY AND OUR OFFICERS’, MANAGERS’, MEMBERS’, EMPLOYEES’, AGENTS’, SUCCESSORS’, INSURERS’ AND ASSIGNS’ LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO YOUR ACTUAL PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF (A) ONE THOUSAND DOLLARS ($1,000) OR (B) AMOUNTS YOU HAVE PAID RISING TIDE IN THE PRIOR TWELVE (12) MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10. THIRD PARTY SITES, CONTENT AND SERVICES. The Services might contain links to third party websites and services offered by third parties (collectively, “Third Party Sites”). Rising Tide provides these Third Party Sites only as a convenience and does not endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you access a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
11. COPYRIGHT POLICY. Rising Tide respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement by any content or material on the Site, please provide the following information in writing to Rising Tide’s copyright agent (see 17 U.S.C. Section 512(c)(3) for further detail):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright.
2. A description of the copyrighted work that you claim has been infringed.
3. A description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit Rising Tide to locate the material.
4. Information so that Rising Tide can contact you, such as address, telephone number and e-mail address.
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
If you believe that any content or materials you posted, uploaded or submitted to the Site, that were subsequently removed from the Site, or to which access was disabled, were improperly removed or disabled, please provide the following Counter-Notification to Rising Tide’s copyright agent (see 17 U.S.C. Section 512(g) for further detail):
1 Your physical or electronic signature.
2. A description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. Your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept services of process from the person who provided notification of the alleged infringement.
Rising Tide’s copyright agent can be reached as follows:
hello@risingtide.com
1717 E. Cary St
Richmond, VA, 23223
Only DMCA notices should be sent to the copyright agent. It is our policy in appropriate circumstances to disable and/or terminate the Accounts of Users who are repeat infringers. For other comments or questions regarding the Site, please contact Rising Tide at: https://www.risingtide.us/contact.
12. GENERAL.
12.1 Changes to These Terms of Service. This Agreement, and Rising Tide’s policies relating to the Services, are subject to occasional revision, and we will notify you by providing an option to accept the new terms before your next use or sending you an email to the last email address you provided to us (if any), messaging through your Account and/or by prominently posting notice of the changes on the Site. Any changes to this Agreement will be effective upon the earlier of (a) the date you accept the new terms, (b) the date thirty (30) calendar days following our dispatch of an email notice to you (if applicable), or (c) the date thirty (30) calendar days following our posting of notice of the changes on the Site. These changes will be effective immediately for new Users of the Services. You are responsible for providing us with your most current email address and for regularly reviewing this Agreement and the Site for any changes. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Services following our issuance of notice of such changes shall indicate your acknowledgement of, and agreement to be bound by, such changes.
12.2 DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action between any of the parties to this Agreement and/or any employee, agent, successor, or assign of any of the parties to this Agreement, regarding or relating to the Site, the Services, this Agreement or any Other Agreements, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s rules for commercial arbitration (available at https://www.adr.org/Rules) and, if the arbitrator deems them applicable, the procedures for consumer-related disputes (also available at https://www.adr.org/Rules).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge
or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) subject to the exclusions and waivers in this Agreement or the Other Agreements, the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each party pays its own attorneys’ fees and costs unless there is an applicable statutory provision that requires the prevailing party to be paid its attorneys’ fees and costs, and then in such instance, the attorneys’ fees and costs awarded shall be determined by applicable law.
(c) Notwithstanding the foregoing, any party may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Moreover, Rising Tide or any agent of Rising Tide (e.g., collections agency) may forego arbitration and initiate a court action to collect outstanding and unpaid amounts owed to Rising Tide. Such claims shall be exclusively brought in the state or federal courts located in Richmond, Virginia; provided however Rising Tide may bring claims in a different jurisdiction to the extent required to enforce this Agreement. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency immediate equitable relief before the state or federal courts located in Richmond, Virginia in order to maintain the status quo pending arbitration, and the parties hereby agree to submit to exclusive personal jurisdiction of those courts for such purpose. A request for such interim measures shall not be deemed a waiver of the right to arbitrate.
(d) With the exception of subparts (1) and (2) in the third paragraph of Section 12.2(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) or (2) in the third paragraph of Section 12.2(b) above (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in a state or federal court in Richmond, Virginia.
(e) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in this Agreement (by exercising our right to modify the Agreement pursuant to Section 12.1 above), any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided us with written notice prior to the date of termination.
(f) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
(g) Any and all controversies, disputes, demands, counts, claims, or causes of action between any of the parties hereunder and/or any employee, agent, successor, or assign of the parties hereunder, regarding or relating to the Site, the Services, this Agreement or any Other Agreement, shall be governed exclusively by the internal laws of the Commonwealth of Virginia, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
12.3 Force Majeure. Any delay in the performance of any duties or obligations of any party to this Agreement (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party.
12.4 Entire Agreement. This Agreement, together with any Other Agreements that have been or are in the future entered into by you as contemplated by this Agreement, constitutes the entire agreement between you and us regarding the use of the Services and supersedes any prior agreements between the parties. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Except as otherwise explicitly stated in this Agreement, if any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
12.5 Independent Service Provider. Your relationship to Rising Tide is that of an independent service provider or customer, and no party to this Agreement is an agent, joint venturer, legal representative or partner of any other party to this Agreement.
12.6 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Rising Tide’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. Rising Tide may assign this Agreement without consent in connection with a change in control or sale of at least a majority of its assets or outstanding voting securities.
12.7 Copyright/Trademark Information. Copyright © 2024, Rising Tide Analytics, LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party, which may own the Marks.
12.8 Electronic Communications. The communications between you and Rising Tide may involve electronic means, whether you send us emails or other electronic messages, or whether Rising Tide communicates with you via email or other electronic messages. For contractual purposes, you (a) consent to receive communications from Rising Tide in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Rising Tide provides to you electronically (via email or Account messaging) satisfy any legal requirement that such communications would satisfy if they were to be in a hard copy writing.
12.9 Publicity and Marketing. You agree that Rising Tide may reference you as a client and display your corporate logo and name on its website and other promotional materials for marketing purposes, including but not limited to blog posts and case studies, subject to any trademark usage policies and brand guidelines provided or published by you.
12.10 Legal Counsel. Each party recognizes that this Agreement is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice.
Hence, in any construction to be made of this Agreement, the same shall not be construed against any party on the basis of that party being the drafter of such language. Each party agrees and acknowledges that it has read and understands this Agreement, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this Agreement and has had ample opportunity to do so.