This Rigor Services Agreement (the “Agreement”) dated August 11, 2023 (the “Effective Date”) is made by and between Check-6 Inc., a Delaware corporation, (“Check-6”) and the entity which has accepted this Agreement through a document which references this agreement (“Customer”). Check-6 has developed proprietary technology that facilitate the creation of operational checklists for the improvement of business processes and procedures (the “Rigor Digital Checklist System”). The Rigor Digital Checklist System (“Rigor DCS“) is hosted on a cloud-based platform that can be accessed using a variety of methods and devices (“Rigor Channels”) and provided as Software as a Service (“Rigor SaaS”). Customer desires to engage Check-6 to provide access to the Rigor DCS using Rigor SaaS, as further described below.
The parties therefore agree as follows.
1. License Grant.
1.1. Rigor SaaS License. Upon the continuing condition that Customer complies with the terms and conditions of this Agreement, including without limitation all payment obligations, Check-6 grants Customer a limited, nonexclusive, nontransferable right to access and use the Rigor DCS for the term of this Agreement. If Customer fails to comply with the terms and conditions of this Agreement or any Check-6 policies and fails to cure such breach within thirty (30) days after receipt of written notice of such breach, then all rights to use or access the Rigor DCS will immediately terminate. Customer’s access and use will be limited in scope, access time, and number of users as specified.
1.2. Use of Rigor SaaS License. Upon the continuing condition that Customer complies with the terms and conditions of this Agreement, Customer is hereby granted a limited, nonexclusive, nontransferable right to access and use Rigor SaaS as identified for the sole purpose of accessing the Rigor DCS. If Customer fails to comply with the terms and conditions of this Agreement or any Check-6 policies, and fails to cure such breach within thirty (30) days after receipt of written notice of such breach, then all rights to use any Rigor SaaS License will immediately terminate.
1.3. Restrictions on Use and Access.
1.3.1. Customer shall not use the Rigor DCS or Licensed Rigor SaaS for any purpose that is a violation of any applicable local, state or federal law or regulation, the terms and conditions of this Agreement or any Check-6 policy.
1.3.2. Customer shall not provide access to the Rigor DCS via the RIGOR SaaS to any third party.
1.3.3. Customer shall not modify, disrupt, or interfere with the operation of the Rigor DCS or RIGOR SaaS.
1.3.4. Customer shall not attempt to access other Check-6 services or software in a manner not expressly authorized under this Agreement.
1.3.5. Customer shall not copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Rigor DCS and Licensed Rigor SaaS or any part thereof.
1.4. Affiliates. Customer may access and use the Rigor DCS via the Rigor SaaS for the benefit of its “Affiliates.” An “Affiliate” for the purposes of this Agreement shall be defined as any incorporated or non-incorporated entity, including partnerships, joint ventures, and limited liability companies in which the Customer, directly or indirectly, has at least a 50% interest in equity, a production sharing arrangement or the equivalent.
1.5. Subcontractors. Customer may acquire Rigor SaaS Licenses for “Subcontractors” (as defined below), provided that each such Subcontractor agrees in writing to be bound by the terms of this Agreement including undertaking and remaining jointly and severally liable for all of Licensee’s obligations. Subcontractors may, in turn, hire their own Subcontractors to do part of the work that they have contracted to perform and RIGOR SaaS Licenses may be acquired for use by Subcontractors. All RIGOR SaaS Licenses provided to Subcontractors will only remain valid during their support of the Customer’s contract for which they are employed and will be terminated as soon as the Subcontractor is no longer under contract of the Customer. Customer will remain liable for all actions and inactions taken by any Subcontractor licensed under this Agreement. “Subcontractor” means a person or business which has a contract (as an independent contractor and not an employee) with the Customer to provide some portion of the work or services on a project that is being undertaken by the Customer.
2. Payments and Charges.
2.1. Subscription Fees. Access and use of the Rigor DCS is provided by Check-6 on a monthly subscription basis. Customer will pay all monthly Subscription Fees to Check-6 by the 5th day of each month. If any Subscription Fees remain unpaid on the 15th business day of the month, then Check-6 may charge an interest charge equal to the lesser of 1.5% per month or the maximum rate allowed by law.
2.2. Suspension Right. If Customer has not completed payment of all undisputed Subscription fees by the 20th day of any month, Check-6 reserves the right to terminate Customer’s access to the RIGOR DCS.
2.3. Reconnection Charge. A reconnection charge of $500 shall be imposed to reestablish access if Customer’s access is suspended for failure to timely pay for in accordance with this Section.
3. Proprietary Rights.
3.1. Check-6 Intellectual Property Rights. Check-6 or its parent corporation owns all legal rights, title and interest in and to the Rigor DCS and Rigor SaaS, including any intellectual property rights which subsist in the Rigor DCS and Rigor SaaS. Certain features of the Rigor DCS and Rigor SaaS may be the subject matter of pending and issued patents assigned to Check-6. The Rigor DCS and Rigor SaaS, including any data or content contained or embedded within, are protected by copyrights owned by Check-6 and potentially other licensors. If Customer wants to use any screen displays or other content beyond the scope of its rights under this Agreement, then Customer must obtain the written consent of Check-6 prior to any such use.
3.2. Customer Intellectual Property Rights. Except as provided herein, Check-6 acknowledges and agrees that it obtains no right, title or interest from Customer in or to any content that Customer creates, submits, transmits or displays on, or through, the Rigor DCS or Rigor Channels via Rigor SaaS (collectively “Customer Content”). Customer hereby grants Check-6 a worldwide, royalty-free, and non-exclusive license to host and use the Customer Data for the purpose of enabling Check-6 to provide and improve the Rigor DCS to include technical support purposes. Customer retains copyright and any other rights already held in the Customer Content.
3.3. Modifications; Improvements. Check-6 may make modifications or improvements to the Rigor DCS, Rigor Channels, and Rigor SaaS based on suggestions or recommendations made by Customer (the “Suggestions”). In such case, Check-6 will own all rights, title, and interest in and to the Suggestions, including any incorporation into the Rigor DCS, Rigor Channels, or Rigor SaaS. Customer hereby irrevocably assigns to Check-6 all rights, title, and interest in and to the Suggestions and agrees to provide Check-6 any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
4. Maintenance, Storage, and Access.
Check-6 shall have the right, in its sole discretion and with reasonable notice sent to Customer, to revise, update, or otherwise modify the Rigor DCS, Rigor Channels, and Rigor SaaS and establish or change limits concerning use of the Rigor DCS, Rigor Channels, and Rigor SaaS, temporarily or permanently, including but not limited to (i) the amount of storage space Customer has on the Rigor DCS at any time, and (ii) the number of times (and the maximum duration for which) you may access the Rigor DCS in a given time period. Check-6 reserves the right to make any such changes effective immediately to maintain the security of the Rigor DCS or to comply with any laws or regulations, and to provide Customer with electronic or written notice within thirty (30) days after such change. Customer may reject changes by discontinuing use of the Rigor SaaS and Licenses to which such changes relate. Customer’s continued use of the Rigor SaaS will constitute acceptance of and agreement to such changes. Check-6 may, from time to time, perform maintenance upon the Rigor DCS resulting in interrupted service, delays, or errors in the same. Check-6 will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided.
5. Security, Privacy, and Data Use.
Check-6 will maintain Customer Data, including all identifying information, secure in accordance with industry practices. Customer agrees that Check-6 may aggregate Customer’s uploaded, non-personally identifiable raw data for the limited purpose of research, analysis, industry benchmarking, and marketing.
6. Term and Termination.
6.1. Term. This Agreement shall commence on the Effective Date and continue for 24 months (the “Term”).
6.2. Termination for Cause. Check-6 may immediately and without notice terminate this Agreement or suspend Customer’s access to the Rigor DCS if Customer fails to comply with the terms and conditions of this agreement, and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Customer may immediately and without notice terminate this Agreement if Check-6 fails to comply with the terms and conditions of this agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such other. Upon termination Check-6 will terminate any access Customer has to the Rigor DCS. Any termination of this Agreement shall not affect Customer’s rights to any payments due.
6.3. Termination for Convenience. Subject to applicable law, either Party may terminate this Agreement without prior notice or the other Party’s consent if: (i) a receiver is appointed for a Party or a Party’s property; (ii) a Party makes an assignment for the benefit of the Party’s creditors; (iii) any proceedings are commenced by, for or against a Party under any bankruptcy, insolvency or debtor’s relief law; or (iv) a Party commences steps to liquidate or dissolve.
6.4. Effect Upon Termination. Upon Termination Check-6 will make all of Customer’s Data available to Customer if requested per the Service Level Agreement found at https://rigorinsights.com/service-level-agreement/.
7. Representations; Warranties; and Disclaimers.
7.1. Accuracy of Customer Data. Check-6 accepts no responsibility for the integrity of data or information provided by Customer or third parties, or data resulting from use of the Rigor DCS or Rigor SaaS. All services relating to such data are provided “AS IS”, and Customer assumes all risks of its use.
7.2. Disclaimer of warranties. Check-6 provides the Rigor DCS and Rigor SaaS “as is.” Check-6 specifically disclaims any warranty, express or implied, including any warranty that the Rigor DCS and Rigor SaaS are fit for a particular purpose, title, merchantability, data loss, non-interference with or non-infringement of any intellectual property rights, or the accuracy, reliability, quality or content in or linked to the Rigor DCS and Rigor SaaS. Check-6 does not warrant that the Rigor DCS and Rigor SaaS will meet any specific needs of customer, be secure or free from bugs, viruses, interruption, errors, theft, or destruction. no warranty is created by a course of dealing, course of performance, or trade usage.
7.3. Limitation of Liability. Check-6 will not be liable to customer for any damages resulting from the use of websites, the Rigor DCS, rigor channels, Rigor SaaS, consulting, or other services, or any third-party products. in no event shall either party be liable for any consequential, indirect, special, or incidental damages, even if that party has been advised of the possibility of such potential loss or damage. If customer’s access to the Rigor DCS or Rigor SaaS is disrupted or malfunctions for any reason, including failures of telecommunications, the internet, electronic communications, corruption, security, loss or theft of data, viruses, spyware, loss of business, revenue, profits or investment, or use of software or hardware that does not meet check-6 systems requirements, then check-6 shall not be responsible for any loss, including losses of income due to disruption of service, beyond the fees paid by customer to check-6 for the Rigor DCS and Rigor SaaS during the period of disruption or malfunction. except for the customer’s obligations to pay fees under this agreement, in no event shall either party’s aggregate liability related to this agreement exceed the amount paid by customer hereunder.
7.4. Indemnity. Check-6 shall indemnify, defend and hold harmless customer, its directors, officers, agents, invitees and employees and their successors, heirs and assigns (“customer group”) from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind and character (including, but not limited to, all costs of defense, settlement and reasonable attorney’s fees) (“claims”) which are claimed or asserted by any of the employees, servants, or agents of check-6 or any of its subcontractors (of any tier), for bodily injury, illness, disease or death, relating to, arising out of or incidental to, this agreement or work to be provided under this agreement (regardless of whether such work is listed in the definition of work or described on any sow hereto), regardless of cause, and even if caused or contributed to by the active, passive, sole, joint, concurrent or comparative negligence of any or all members of customer group and regardless of whether liability without fault or strict liability is imposed or sought to be imposed on any or all members of customer group to the fullest extent allowed by law, but except to the extent caused by the gross negligence or willful misconduct of any member of customer group.
8. Confidentiality.
8.1. Scope of Confidential Information. “Confidential Information” means any confidential technical data, trade secret, know-how or other confidential information disclosed by any Party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing Party as “Confidential” or “Proprietary”. If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving Party within ten (10) days of such disclosure.
8.2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving Party at the time of disclosure or becomes known to the receiving Party without breach of this Agreement; (ii) is or becomes publicly known through no wrongful act of the receiving Party or any subsidiary of the receiving Party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving Party or any of its subsidiary; (v) is furnished to any third party by the disclosing Party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing Party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
8.3. Obligations. Each Party agrees that it will not disclose any Confidential Information of the disclosing Party to any third party and will not use the disclosing Party’s Confidential Information for any purpose other than for the performance of the right and obligations hereunder during the term of this Agreement and for a period of two (2) years thereafter, without the prior written consent of the disclosing Party. Each Party further agrees that Confidential Information shall remain the sole property of the disclosing Party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the disclosing Party to the other Party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein. Moreover, each Party understands the sensitive nature of Confidential Information and the underlying project.
9. Non-Solicitation.
The Parties agree that for the period beginning with the Effective Date of this Agreement and for a period of one (1) year after the Termination Date, as defined below, no Party or its Affiliate will, directly or indirectly, without the prior written consent of the other Party (which consent may be withheld at the other Party’s sole discretion), (i) induce, either directly or indirectly, any employee, agent, independent contractor, supplier, customer or any other person or organization to terminate or alter its relationship with such other Party; (ii) solicit the employment of or offer employment to any employee of such other Party, whether by direct or indirect employment, or by contract, or otherwise; or (iii) knowingly assist or encourage any other person, including any employee of such other Party, in carrying out any activity that would be prohibited by the provisions of this Agreement if such activity were carried out by a Party hereto, either directly or indirectly. For purposes of this Agreement, the term “Termination Date” shall mean the date of the termination of this Agreement for any reason whatsoever, such as, without limitation, by mutual written consent, for cause or without cause.
10. Assignment.
Neither Party may assign its interest in this Agreement a, including by operation of law or change of control, without the other Party’s prior written consent, which consent shall not be unreasonably withheld; except that either Party may, without the consent of the other, assign the Agreement to a controlled subsidiary of that Party or a purchaser of all or substantially all of that Party’s assets used in connection with performing this Agreement, provided the assigning Party guarantees the performance of and causes the assignee to assume in writing all obligations of the assignor under this Agreement.. This Agreement will inure to the benefit of and be binding upon the Party’s successors and permitted assigns. Unless otherwise specifically agreed to by the non-assigning Party, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement.
11. Relationship between the Parties.
Each Party is an independent contractor, and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties.
12. Governing Law.
This Contract is governed by and interpreted under the laws of the State of Texas, without regard to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods, 1980 (known as “the Vienna Sales Convention”) does not apply to this Contract. This Agreement is governed by and interpreted under the laws of the State of Texas, without regard to its choice of law rules, except that the substantive and procedural rules of the Federal Arbitration Act, 9 USC §§1-16 (“the Act”) shall govern Section 13.
13. Dispute Resolution.
13.1. Resolution of Disputes. The Parties shall exclusively and finally resolve any Dispute between them using direct negotiations, mediation and arbitration as set out in Section 13.
13.2. Direct Negotiations. If a Dispute arises, a Party shall initiate the resolution process by giving notice setting out in writing and in detail the issues in Dispute and the value of the Claim to the other Party. A meeting between the Parties, attended by individuals with decision-making authority, must take place within thirty days from the date the notice was sent in an attempt to resolve the Dispute through direct negotiations.
13.3. Mediation. If the Dispute cannot be settled by direct negotiations within thirty days of initiation of the resolution process, either Party may initiate mediation by giving notice to the other Party. The place of mediation shall be Houston, Texas.
13.4. Arbitration. If the Dispute is not resolved by mediation within thirty days from the date of the notice requiring mediation, or if the Dispute is unresolved within sixty days from the date of the notice requiring direct negotiations, then the Dispute shall be finally settled by binding arbitration and either Party may initiate such arbitration by giving notice to the other Party. The arbitration shall be conducted in accordance with the United Nations Commission on International Trade Law Arbitration (“UNCITRAL”) Rules, except to the extent of conflicts between the UNCITRAL Rules at present in force and the provisions of this Contract, in which event the provisions of this Contract prevail. The International Centre for Dispute Resolution (in the case of Disputes involving one or more non-U.S. parties) or the American Arbitration Association (in the case of Disputes involving all U.S. parties) is the appointing authority. The place of arbitration shall be Houston, Texas.
13.5. Arbitration Proceedings. The following provisions shall apply to any arbitration proceedings pursuant to Section 13.
13.5.1. The number of arbitrators shall be one if the monetary value of the Dispute is US$5,000,000 (or its currency equivalent) or less. The number of arbitrators shall be three if the monetary value is greater than US$5,000,000 or its currency equivalent.
13.5.2. The arbitrator or arbitrators must be fluent in the English language and the language of the arbitral proceeding shall be in English.
13.5.3. The arbitrator or arbitrators must remain neutral, impartial and independent regarding the Dispute and the Parties.
13.5.4. The Parties waive any Claim for, and the arbitrator has or arbitrators have no power to award, the damages waived and released under Section 11. The arbitrator has or arbitrators have no authority to appoint or retain expert witnesses for any purpose unless agreed to by the Parties. The arbitrator has or arbitrators have the power to rule on objections concerning jurisdiction, including the existence or validity of this arbitration clause and existence or the validity of this Contract.
13.5.5. All arbitration fees and costs (with the exception of translation costs as specified above) shall be borne equally regardless of which Party prevails. Each Party shall bear its own costs of legal representation and witness expenses.
13.5.6. The arbitrator is or arbitrators are authorized to take any interim measures as the arbitrator considers or arbitrators consider necessary, including the making of interim orders or awards or partial final awards. An interim order or award may be enforced in the same manner as a final award using the procedures specified below.
13.5.7. The arbitrator or arbitrators must render a reasoned award in writing. The award is final and binding.
13.5.8. The Dispute will be resolved as quickly as possible. The arbitrator’s or arbitrators’ award must be issued within three months from completion of the hearing, or as soon as possible thereafter.
13.5.9. The parties waive irrevocably their right to any form of appeal, review or recourse to any court or other judicial authority, to the extent that such waiver may be validly made.
13.5.10. Except for proceedings to preserve Property pending determination by the arbitrator or arbitrators or to enforce an award, the mandatory exclusive venue for any judicial proceeding permitted in this Agreement is the court of competent jurisdiction in Houston Texas. The parties consent to the jurisdiction of these courts and waive any defenses they have regarding jurisdiction.
13.5.11. Proceedings to enforce judgment entered on an award may be brought in any court having jurisdiction over the person or assets of the non-prevailing party. The prevailing party may seek, in any court having jurisdiction, judicial recognition of the award, or order of enforcement or any other order or decree that is necessary to give full effect to the award.
14. Notices.
All notices required or permitted must be in writing and delivered by mail (postage prepaid), by hand delivery to the address of the receiving party set out in the signature page to this Agreement, as appropriate, or via electronic mail subject to the conditions below. Notice via electronic mail (email) are ineffective unless and until the recipient acknowledges receipt of the email with a corresponding reply via email to the sender (with the reply date sufficing as the formal notice date). Notice may also be delivered by facsimile sent to the facsimile number of the receiving party set out in the signature page to this Agreement, as appropriate, provided that the original notice is promptly sent to the recipient by mail (postage prepaid) or by hand delivery. With the exception of notice via email, all other notices are effective when received by the recipient during the recipient’s regular business hours. Notices which do not comply with these requirements are ineffective, and do not impart actual or any other kind of notice.
15. Compliance with Laws.
Without limiting any other provision in this Agreement, each party shall comply with, and shall ensure that all its affiliated entities comply with, all applicable permits, licenses, authorizations, concessions and clearances and all Applicable Laws and regulations.
16. General Provisions.
16.1. Amendment of this Agreement. No amendment to this Agreement is effective unless made in writing and signed by authorized representatives of both Licensor and Licensee.
16.2. Waiver. Either party’s failure to pursue remedies for breach of this Agreement, does not constitute a waiver by that party of any breach of this Agreement. The waiver or failure to require the performance of any covenant or obligation contained in this Agreement or pursue remedies for breach of this Agreement does not waive a later breach of that covenant or obligation.
16.3. Severability. Each provision of this Agreement is severable and if any provision is determined to be invalid, unenforceable or illegal under any existing or future law by a court, arbitrator of competent jurisdiction or by operation of any Applicable Laws, this invalidity, unenforceability or illegality does not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal.
16.4. Survival. Despite termination of this Agreement for any reason, all provisions in this Agreement containing representations, warranties, releases, defense obligations and indemnities, and all provisions relating to audit, confidentiality, insurance, disclaimer of certain remedies, limitations of liability, ownership or use or return of Agreement Information, retention and inspection of Records, dispute resolution and governing law, and all causes of action which arose prior to completion or termination, survive indefinitely until, by their respective terms, they are no longer operative or are otherwise limited by an applicable statute of limitations.
16.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original of this Agreement, and which together will constitute one and the same instrument; provided that neither party will be bound to this Agreement unless and until both parties have executed a counterpart.