Terms of Service for Rhythm Applications
This Rhythm Software Terms of Service (“Agreement” or “Terms of Service”) is a legal agreement between you (“Customer”) and Rhythm Software, Inc. ("Rhythm") for access to the Rhythm Service, which includes access to computer software and associated documentation. The Rhythm Service also includes any updates and supplements to the original Rhythm Service to which you are provided access by Rhythm during the term of this Agreement. Any product provided along with the Rhythm Service that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement.
BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE RHYTHM SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR ACCESS THE RHYTHM SERVICE.
1. Terms of Rhythm Service. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Rhythm Master Agreement signed by Customer (the “Master Agreement”). In addition, Customer agrees that unless explicitly stated otherwise, any new feature(s) provided by Rhythm that augment or enhance the Rhythm Service, and/or any new Rhythm Service(s) which are subsequently purchased by the Customer will be subject to this Agreement. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE MASTER AGREEMENT. Rhythm grants Customer the non-exclusive, non-transferable and terminable right to access the features and functions of the Rhythm Service as more fully set forth in the Master Agreement.
2.1. Accuracy of Customer’s Registration Information. Customer agrees to provide accurate, current and complete information (“Registration Data”) about Customer. Rhythm may provide Customer with the option to provide this information online, in order to gain access to the Rhythm Service. Customer further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Customer acknowledges and agrees that if Customer provides information that is intentionally inaccurate, not current or incomplete in a material way, or Rhythm has reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, Rhythm has the right to suspend Customer’s account.
2.2. Passwords, Access, and Notification. Customer may designate Authorized Users under Customer’s account and Customer may provide and assign unique passwords and user names to each Authorized User. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer’s passwords and user names. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Rhythm Service or under Customer’s account (“Electronic Communications”). Rhythm will act as though any Electronic Communications it receives under Customer’s passwords, user names, and/or account number will have been sent by Customer. Customer agrees to immediately notify Rhythm if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number.
2.3. Email and Notices. Customer agrees to provide Rhythm with Customer’s e-mail address, to promptly provide Rhythm with any changes to Customer’s e-mail address, and to accept emails (or other Electronic Communications) from Rhythm at the e-mail address Customer specifies. Except as otherwise provided in this Agreement, Customer further agrees that Rhythm may provide any and all notices, statements, and other communications to Customer through either e-mail or posting on the Rhythm Service.
2.4. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Rhythm Service. Customer expressly consents to Rhythm’s interception and storage of Electronic Communications and/or Customer Data as needed to provide the Rhythm Service, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Rhythm. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Rhythm is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Rhythm, including, but not limited to, the Internet and Customer’s local network.
2.5. Customer’s Lawful Conduct. The Rhythm Service allows Customer to send Electronic Communications directly to Rhythm and to third-parties. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Rhythm Service, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Customer will not send any Electronic Communications from the Rhythm Service that is unlawful, harassing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the Rhythm Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Rhythm Service by any means other than through the interfaces that are provided by Rhythm. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Rhythm Service available to any third party other than an Authorized User, including but not limited to, creating Internet Links to the Rhythm Service which include login information, including but not limited to, user names, passwords, secure cookies, and/or “mirroring” or “framing” any part of the Rhythm Service. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Rhythm. Neither Customer, nor someone acting on Customer’s behalf, will use the Rhythm Service to target for solicitation any Rhythm customers for purposes of providing any competitive product. Customer will ensure that any use of the Rhythm Service by Customer’s employees (or Authorized Users) is in accordance with the terms and conditions of this Agreement.
2.6. Third-Party Software. Customer agrees to use software produced by third parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by Rhythm. Until notified otherwise by Rhythm, Customer agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Rhythm and to follow logon procedures for Rhythm Services that support such protocols. Customer acknowledges that Rhythm is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software.
2.7. Links; Third Party Offerings. The Rhythm Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Rhythm has no control over such sites and resources and Customer hereby acknowledges and agrees that Rhythm is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. In addition, Rhythm reserves the right to maintain on the Rhythm Service the Rhythm logo.
2.8. Rhythm’s Support. Rhythm will make commercially reasonable efforts to promote Customer’s successful utilization of the Rhythm Service, including but not limited to providing Customer with Rhythm Help Documentation. Rhythm also offers Customer Support and Professional Rhythm Services consultation. Customer acknowledges that Rhythm has extensive experience helping Customers improve utilization and realization of benefits of the Rhythm Service, and that not following the advice of Rhythm, or other Rhythm authorized implementation partner, in these areas may substantially undermine Customer’s successful utilization of the Rhythm Service.
2.9. Proprietary Rights. Customer acknowledges and agrees that the Rhythm Service and any necessary software used in connection with the Rhythm Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content or information presented to Customer through the Rhythm Service may be protected by copyrights, trademarks, Rhythm Service marks, patents or other proprietary rights and laws.
2.10. Trademark Information. RhythmTM, the Rhythm logoTM, and other Rhythm Service marks, logos and product and Rhythm Service names are marks of Rhythm (the “Rhythm Marks”). Customer agrees not to display or use the Rhythm Marks in any manner without the owner’s express prior written permission.
2.11. Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure, whether such disclosure was in oral or written form, as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations hereunder; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Rhythm will restrict its employees’ access to Customer’s Confidential Information to only those employees necessary to provide the Rhythm Service. Rhythm may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their Rhythm Service for Rhythm in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section 2.11 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure. With respect to any information received by either party from the other as a result of any other relationship between the parties other than as set forth in this Agreement (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any Nondisclosure Agreement (or similar agreement) executed between the parties.
2.12. Privacy Policies. Rhythm’s privacy policies (the “Privacy Policies”) set forth Rhythm’s practices regarding the collection and use of information that Rhythm collects from customers through the use of the Rhythm site, the Rhythm Console, and the Rhythm Portal. The terms of such Privacy Policies are incorporated herein by reference.
3.1. Warranty of Functionality. Rhythm warrants to Customer during the Term of this Agreement that the Rhythm Service will substantially conform in all material respects the functionality described in the Rhythm Documentation applicable to the products accessed by customer and that similar functionality will be maintained in all material respects in subsequent upgrades to the Rhythm Service. Rhythm does not warrant that the Rhythm Service will be error-free and such warranty is conditional upon Customer’s compliance with the terms of this Agreement. Customer’s sole and exclusive remedy for Rhythm’s breach of this warranty shall be that Rhythm shall be required to use commercially reasonable efforts to modify the Rhythm Service to substantially conform to all material respects the functionality described in the Rhythm Documentation and if Rhythm is unable to restore such functionality Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the fees paid for under the Agreement for its use of the Rhythm Service. Rhythm shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to email@example.com.
3.2. Rhythm Service Level Warranty. Rhythm warrants during the Term of this Agreement that the Rhythm Service will meet the Rhythm Service levels in any month, as outlined in Schedule A which is attached to and made a part of this Agreement. In the event that Rhythm fails to meet the Rhythm Service levels outlined in Schedule A, Customer’s sole and exclusive remedy, in Rhythm’s sole discretion, is that Rhythm will provide Customer with a credit if such credit is set forth in Schedule A. Any credit is expressly conditioned upon Customer providing Rhythm written notice of such failure sent to firstname.lastname@example.org by the tenth day of the month following such Rhythm Service level failure.
3.3. Security, Data Maintenance and Backup Warranty. Rhythm warrants during the Term of this Agreement that Rhythm will use commercially reasonable efforts to provide that the information provided by the Customer (“Customer’s Data”) will be safeguarded and maintained in conformance with Schedule B which is attached to and made a part of this Agreement. Rhythm also warrants that it will utilize and maintain commercially reasonable security and backup procedures to protect Customer Data. In the event of a breach of this provision, Rhythm will use commercially reasonable efforts to correct the Customer’s Data or restore the Customer’s Data as quickly as possible but in any event within three (3) business days. In the event Rhythm is unable to correct or restore Customer’s Data as provided in this Section 3.3, Customer’s sole and exclusive remedy shall be that it may, at its option, terminate the Agreement and receive a pro-rata refund of the fees paid for under the Agreement for its use of the Rhythm Service but which use has not yet been furnished by Rhythm as of the date of such termination.
4. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, RHYTHM DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE RHYTHM SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE RHYTHM SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE RHYTHM SERVICE AND/OR RHYTHM DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE RHYTHM SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY RHYTHM. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 3 ABOVE, THE RHYTHM SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE RHYTHM SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
5. Limitations of Liability. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH RHYTHM IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY RHYTHM OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. OTHER THAN FOR A VIOLATION OF CUSTOMER’S ACCESS RIGHTS OR SECTION 2.11 HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding the foregoing the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in connection with any access, use or other employment of the Rhythm Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, tort, or otherwise, shall in no case exceed the equivalent of the preceding 12 months in access fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the access of the Rhythm Service and that, were Rhythm to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 BELOW.
6.1. Infringement. Rhythm will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising solely out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from the infringement of any copyright, patent, trademark, or misappropriation of a trade secret relating to the Rhythm Service; provided that Customer (a) promptly gives Rhythm notice of the claim, suit, action, or proceeding; (b) gives Rhythm sole control of the defense and related settlement negotiations; and (c) provides Rhythm with all reasonably available information and assistance necessary to perform Rhythm’s obligations under this paragraph. If the Rhythm Service solely is held to infringe any intellectual property right, Rhythm may, in its sole discretion and at its own expense, use commercially reasonable efforts to either procure rights that will protect Customer against such claim without cost to Customer or replace the Rhythm Service with a non-infringing Rhythm Service. Provided that Rhythm complies with this Section 6.1, Customer shall have no remedy against Rhythm, except it may at its option terminate the Agreement and receive a pro-rata refund of the fees paid for under the Agreement for Customer’s use of the Rhythm Service but which use has not yet been furnished by Rhythm as of the date of such termination.
6.2. Disclosure of Customer Data. Rhythm will fully indemnify, defend and hold Customer harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from Rhythm’s gross negligence in preventing unauthorized access to confidential Customer data, or Rhythm’s willful disclosure of such confidential Customer data, as determined by a court of competent jurisdiction in connection with a claim by a third party alleging a breach of confidentiality. In addition, Rhythm will indemnify Customer up to an amount not to exceed the total value of access fees actually paid during the term of Customer’s agreement, from and against any Losses incurred by Customer with respect to any third party claim, suit, action, or proceeding arising out of or relating to Rhythm’s breach of Section 2.11 of this Agreement (which breach that does not rise to the level of gross negligence in preventing unauthorized access to confidential Customer Data or Rhythm’s willful disclosure of such confidential Customer Data as described in Section 6.2). Rhythm’s indemnification obligations under this Section 6.2 are expressly premised upon Customer (a) promptly giving Rhythm notice of any such third party claim, suit, action, or proceeding; (b) giving Rhythm sole control of the defense and related settlement negotiations; and (c) promptly providing Rhythm with all reasonably available information and assistance necessary to perform Rhythm’s obligations under this Section 6.2. Provided that Rhythm complies with this Section 6.2, Customer shall have no remedy against Rhythm, except it may at its option terminate the Agreement and receive a pro-rata refund of the access fees paid for under the Agreement for its use of the Rhythm Service but which use has not yet been furnished by Rhythm as of the date of such termination.
6.3. Customer’s Infringement. Customer shall defend and hold Rhythm harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding (i) alleging that Customer Data or any Trademarks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party; (ii) of Customer’s breach of Section 2.6; (iii) of a modification by Customer of the Rhythm Service giving rise to such infringement; (iv) of Customer’s combination, interface, operation or use of the Rhythm Service with third party technology except for as provided in the Rhythm Documentation; (v) of misuse of the Rhythm Service by Customer; (vi) of acts (or any failure to act) by Customer hereunder; or (vii) of any breach by Customer of the Customer obligations hereunder, provided that Rhythm (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer’s obligations under this paragraph.
6.4. Force Majeure. Rhythm shall not be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the reasonable control of Rhythm, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes (except those involving party’s own employees), war, any acts or omissions of any government or governmental authority, declarations of government, transportation delays, power failure, computer failure, telecommunications failure, internet failure and any other events reasonably beyond the control of Rhythm.
6.5. Survival. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year
7.1. Suspension for Delinquent Account. Rhythm reserves the right to suspend Customer’s access and/or use of the Rhythm Service for any accounts for which any payment is due but unpaid. Customer agrees that Rhythm shall not be liable to Customer nor to any third party for any suspension of the Rhythm Service resulting from Customer’s nonpayment of fees as described in this Section 7.1.
7.2. Suspension for Ongoing Harm. Customer agrees that Rhythm may with reasonably contemporaneous telephonic notice to Customer suspend Customer’s access to the Rhythm Service, interrupt any queries or batch processes, and generally prevent Customer from using the Rhythm Service if Rhythm reasonably concludes that Customer use of the Rhythm Service is causing immediate and ongoing harm to Rhythm or others. In the extraordinary event that Rhythm suspends Customer’s access to the Rhythm Service, Customer will use commercially reasonable efforts to resolve the issues causing the suspension of Rhythm Service and agrees that Rhythm can continue a suspension until the issue is corrected and/or no longer causing harm to Rhythm or any other Rhythm customers. Customer agrees that Rhythm shall not be liable to Customer or to any third party for any suspension of the Rhythm Service under such circumstances as described in this Section 7.2.
7.3. In The Event of Breach. Other than as noted herein, either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of a material breach of any provision of this Agreement by the other party, provided that, during the thirty (30) day period, the breaching party fails to cure such material breach. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Rhythm Service. If this Agreement is terminated as a result of a material breach on Rhythm’s part, Rhythm shall refund the pro rata portion of any fee that may have been paid by Customer for the portion of the Rhythm Service not yet furnished to Customer.
7.4. Handling of Customer Data In The Event Of Termination. Customer acknowledges and agrees that following termination of Customer’s account and/or use of the Rhythm Service, Rhythm may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be able to delete Customer’s account and related Customer Data. However, in the event that Customer’s Rhythm Service with Rhythm terminates, Rhythm will grant Customer temporary, limited access to the Rhythm Service for the sole purpose of permitting Customer to retrieve lawful Customer Data using standard Rhythm query functionality, provided that Customer has paid in full all good faith undisputed amounts owed to Rhythm, however, in no event shall such limited temporary access exceed ninety (90) days. Customer further agrees that Rhythm shall not be liable to Customer or to any third party for any termination of Customer access to the Rhythm Service or deletion of Customer Data, provided that Rhythm is in compliance with the terms of this Section 7.4.
8. Modification To or Discontinuation of the Rhythm Service. Rhythm reserves the right at any time and from time to time to modify, temporarily or permanently, within Rhythm’s sole discretion, the Rhythm Service (or any part thereof). In the event that Rhythm modifies the Rhythm Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Rhythm, at Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Rhythm is unable to substantially restore such functionality, Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the fees paid under the Agreement for use of the Rhythm Service which was paid for by Customer but not yet furnished by Rhythm as of the date of such termination. Customer acknowledges that Rhythm reserves the right to discontinue offering the Rhythm Service at the conclusion of Customer’s then current Term. Customer agrees that Rhythm shall not be liable to Customer or to any third party for any modification of the Rhythm Service as described in this Section 8.
9. Service Monitoring and Analyses. Rhythm continuously monitors the Rhythm Service to facilitate Rhythm’s operation of the Service; to help resolve Customer service requests; to detect and address threats to the functionality, security, integrity, and availability of the Service as well as any content, data, or applications in the Rhythm Service. Information collected by Rhythm monitoring tools (excluding Customer Data) may also be used to assist in managing Rhythm’s product and service portfolio and to help Rhythm address deficiencies in its product and service offerings. Rhythm may (i) compile statistical and other information related to the performance, operation and use of the Rhythm Service, and (ii) use data from the Rhythm Service in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Rhythm may make Service Analyses publicly available; however, Service Analyses will not incorporate Customer Data, personal information or Confidential Information in a form that could serve to identify Customer or any individual. Rhythm retains all intellectual property rights in Service Analyses.
10. Modifications. Rhythm reserves the right at any time and from time to time to modify these Terms of Service by posting the updated Terms of Service. By using the Rhythm Service after Company has updated the Terms of Service, Customer is agreeing to the updated Terms of Service.
SERVICE LEVEL COMMITMENT FOR SUBSCRIBERS OF RHYTHM
Service Level Commitment
Rhythm commits to provide 99% service availability with respect to the Customer’s Rhythm Service during each month of the term (exclusive of any scheduled service downtime). If in any calendar month this uptime commitment is not met, Rhythm shall provide, as the sole and exclusive remedy, a Customer credit as provided for in this Schedule A. Rhythm Service Downtime is defined as a period that the Rhythm Service as provided by Rhythm is not available to Customer and its Authorized Users as a result of nonscheduled events and starts when Customer first notifies Rhythm the service is not available, using the prescribed notice procedures, and stops when Customer or one of its Authorized Users is able to login to the Rhythm Service. Scheduled maintenance as described below is specifically excluded from this commitment.
- For any one (1) month period, if the 99% service availability commitment is not met Customer shall be entitled to a ten percent (10%) credit of their monthly Rhythm Service fees.
- For any one (1) month period, if a 96% service availability level is not met Customer shall be entitled to a twenty five percent (25%) credit of their monthly Rhythm Service fees.
- For any six (6) consecutive month period, should Rhythm fail to meet the 96.5% service availability level for at least three months within that period, and where Customer has notified Rhythm that 96.5% service availability was not met in each of those three months, such performance shall be considered a material breach and customer may cancel this agreement as provided in section 7.3 herein.
Rhythm warrants service availability only for that which is provided to Customer by Rhythm. Rhythm does not warranty any availability other than as it relates to the Rhythm Service.
In order to receive a credit under this service level commitment, Customer must have created a service case with Rhythm using the regular support process within five (5) days of the end of the applicable month. A service case will be opened by e-mailing Rhythm at email@example.com; If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to Rhythm are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to one year from the quarter for which the credit was issued. Rhythm will calculate any service availability downtime using Rhythm’s system logs and other records.
The Service Level Commitment may be amended by Rhythm in its sole discretion, after providing 30 days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your Rhythm account either a) as a note on the screen presented immediately after completion of the login authentication credentials through the login screen, or b) by e-mail to the registered e-mail address provided for administrator(s) for Customer’s account.
Exclusion of Sandbox and Beta Accounts
Rhythm Sandbox, Beta, and other temporary test and production environments are expressly excluded from this or any other service level commitment.
SCHEDULE B SECURITY
Rhythm commits to use commercially reasonable efforts to protect the privacy and integrity of Customer data. As the Rhythm Service is hosted on Amazon Web Services (AWS), Rhythm and AWS participate in a Shared Responsibility Model (https://aws.amazon.com/compliance/shared-responsibility-model/)
To ensure the privacy, security, and availability of Customer data and transactions, Rhythm employs the following technologies in delivering its service:
- Secure user authentication provided by Auth0
- Secure transmission and storage of credit card information provided
- Regularly scheduled backup and restore processes
- Continuous monitoring and alerting of system usage and performance
Rhythm’s serverless architecture allows AWS to assume maximum responsibility within the Shared Responsibility Model. Unlike the majority of hosted or cloud-based solutions where the service provider (Rhythm) would be responsible for the maintenance and security of web, application, and database servers, with a serverless architecture AWS provides:
- Secure Socket Layer (SSL) communication to the Rhythm API (API Gateway)
- Secure compute resources (Lambda)
- Secure database services (DynamoDB)
- Secure key management (Key Management Service)
- Server-side encryption of data at rest (S3 and DynamoDB)
- Certificate management (Certificate Manager)
- High quality industrial strength networking equipment including routers, switches, and firewalls
- Redundant, highly available power
- Physically secure data centers
With Rhythm’s serverless design, AWS automatically provides additional compute and database resources to handle increases in demand. Rhythm uses both the monitoring and alerting capabilities within AWS as well as additional third party tools to monitor and respond to any degradation in service 24x7.
Data and Backups
Rhythm utilizes several of AWS’s backup capabilities in conjunction to provide a reliable and robust backup solution which includes point-in-time backups for recently modified data as well as AWS Glacier for offsite long-term cold storage. All backup data remains within the perimeter of the AWS platform.