Red Rake Terms of Service

1. Your Relationship with Red Rake

1.1 Your use of Red Rake’s sending, sharing and publishing services (referred to collectively as the “Services” in this document and excluding any services provided to you by Red Rake under a separate written agreement) is subject to the terms of a legal agreement between you and Red Rake. “Red Rake” means Red Rake, LLC, whose principal place of business is at Red Rake, LLC, 5810 Ravina Court, Suite 220, Colorado Springs, CO 80919, United States. This document explains how the agreement is made up, and sets out some of the terms of that agreement.

1.2 Unless otherwise agreed in writing with Red Rake, your agreement with Red Rake will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “Universal Terms”.

1.3 Your agreement with Red Rake will also include the terms of any specific legal notices, agreements and policies applicable to the Services. All of these are referred to below as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service. Additional Terms include, but are not limited to acceptable use policies, privacy policies and copyright policies.

1.4 The Universal Terms, together with the Additional Terms, form a legally binding agreement between you and Red Rake in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.

1.5 If there is any contradiction between what the Additional Terms say and what the Universal Terms say, then the Additional Terms shall take precedence in relation to that Service.

2. Accepting the Terms

2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.

2.2 You can accept the Terms by:

(a) clicking to accept or agree to the Terms, where this option is made available to you by Red Rake in the user interface for any Service; or

(b) by actually using the Services.

In either case, you understand and agree that Red Rake will treat either your initial express acceptance of the Terms, or your use of the Services, as continuing acceptance of the Terms from that point onwards.

2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Red Rake, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.

2.4 Before you continue, you should print off or save a local copy of the Universal Terms for your records.

3. Language of the Terms

3.1 Where Red Rake has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Red Rake.

3.2 If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.

4. Provision of the Services by Red Rake

4.1 Red Rake has partners and affiliated legal entities around the world (“Partners and Affiliates”). Sometimes, these companies will be providing the Services to you on behalf of Red Rake itself. You acknowledge and agree that Partners and Affiliates will be entitled to provide the Services to you. To the extent that such Partners and Affiliates mandate additional or differing terms of service, such terms will deemed part of the “Terms” governing your Agreement with Red Rake, and you agree to comply with such Partner and Affiliate terms.

4.2 Red Rake is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Red Rake provides may change from time to time without prior notice to you.

4.3 As part of this continuing innovation, you acknowledge and agree that Red Rake may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Red Rake’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Red Rake when you stop using the Services.

4.4 You acknowledge and agree that if Red Rake disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.

4.5 You acknowledge and agree that while Red Rake may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, or on other parameters of the Services, such fixed upper limits and parameters may be set by Red Rake at any time, at Red Rake’s discretion.

5. Use of the Services by You

5.1 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Red Rake will always be accurate, correct and up to date.

5.2 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) Red Rake’s Acceptable Use Policy at https://www.redrake.com/acceptable-use-policy/ and (c) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data to and from the United States or other relevant countries).

5.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Red Rake. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers).

5.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).

5.5 As further described in Sections 9 and 10 below and unless you have been specifically permitted to do so in a separate agreement with Red Rake, you agree that you will not reproduce, duplicate, or copy the Services for any purpose.

5.6 You agree that you are solely responsible for (and that Red Rake has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Red Rake may suffer) of any such breach. You are responsible for your data recipient’s use of the Services and their compliance therewith.

6. Your Passwords and Account Security

6.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.

6.2 Accordingly, you agree that you will be solely responsible to Red Rake for all activities that occur under your account.

6.3 If you become aware of any unauthorized use of your password or of your account, you agree to notify Red Rake immediately using both e-mail legal@redrake.com and phone 1.719.439.8399.

7. Privacy and Your Personal Information

7.1 For information about Red Rake’s data protection practices, please read Red Rake’s Privacy Policy at https://www.redrake.com/privacy/. This policy explains how Red Rake treats your personal information, and protects your privacy, when you use the Services.

7.2 You agree to the use of your data in accordance with Red Rake’s privacy policies.

8. Content in the Services

8.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”.

8.2 You should be aware that Content presented to you as part of the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to Red Rake (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by the owners of that Content or Red Rake, in a separate agreement.

8.3 Red Rake reserves the right to refuse or remove any or all Content from any Service.

8.4 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.

8.5 You agree that you are solely responsible for (and that Red Rake has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Red Rake may suffer) by doing so.

9. Proprietary Rights

9.1 You acknowledge and agree that Red Rake (or Red Rake’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Red Rake and that you shall not disclose such information without Red Rake’s prior written consent.

9.2 Unless you have agreed otherwise in writing with Red Rake, nothing in the Terms gives you a right to use any of Red Rake’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.

9.3 If you have been given an explicit right to use any of these brand features in a separate written agreement with Red Rake, then you agree that your use of such features shall be in compliance with that agreement, any applicable provisions of the Terms

9.4 Other than the limited license set forth in Section 11, Red Rake acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Red Rake, you agree that you are responsible for protecting and enforcing those rights and that Red Rake has no obligation to do so on your behalf.

9.5 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.

9.6 Unless you have been expressly authorized to do so in writing by Red Rake, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.

10. License from Red Rake

10.1 Red Rake gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Services provided to you by Red Rake. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Red Rake, in the manner permitted by the Terms.

10.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the underlying technology of the Service or any part thereof.

10.3 Unless Red Rake has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service.

11. Content License from You

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.

11.2 You agree that this license includes a right for Red Rake to make such Content available to other companies, organizations or individuals to whom you grant access as part of the Services licensed to you.

11.3 You understand that Red Rake, in performing the required technical steps to provide the Services to our users, will transmit and store your Content on various secure public networks and secure third-party servers. You agree that it is your responsibility to maintain periodic and current backup copies of all data and programs used in conjunction with the Services to prevent catastrophic loss.

11.4 You understand that Red Rake, as part of the administration of these Services, may on occasion access your Content and when this occurs Red Rake will make every reasonable effort to maintain the privacy of that Content.

11.5 You confirm and warrant to Red Rake that you have all the rights, power and authority necessary to grant the above license.

12. Service Updates

12.1 The Services which you use may be updated from time to time by Red Rake in its sole discretion. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new modules and completely new versions. You agree to use such updates as part of your use of the Services.

13. Ending Your Relationship with Red Rake

13.1 The Terms will continue to apply until terminated by either you or Red Rake as set out below.

13.2 If you want to terminate your legal agreement with Red Rake, you may do so by (a) notifying Red Rake at any time and (b) closing your accounts for all of the Services which you use, where Red Rake has made this option available to you. Your notice should be sent, in writing, to Red Rake’s address which is set out at the beginning of these Terms.

13.3 Red Rake may at any time, terminate its legal agreement with you if:

(A) You have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or

(B) Red Rake is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or

(C) The Partner with whom Red Rake offered the Services to you has terminated its relationship with Red Rake or ceased to offer the Services to you; or

(D) Red Rake is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or

(E) The provision of the Services to you by Red Rake is, in Red Rake’s opinion, no longer commercially viable.

13.4 Nothing in this Section shall affect Red Rake’s rights regarding provision of Services under Section 4 of the Terms.

13.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Red Rake have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 20.7 shall continue to apply to such rights, obligations and liabilities indefinitely.

14. EXCLUSION OF WARRANTIES

14.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, RED RAKE, ON BEHALF OF ITSELF AND ITS PARTNERS AND AFFILIATES PROVIDE THE SERVICES ON AN “AS IS/WHERE IS” AND “AS AVAILABLE” BASIS, AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, RELATED TO THE SERVICE, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT. ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

14.2 IN PARTICULAR, RED RAKE, ITS PARTNERS AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:

(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,

(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND

(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SERVICES PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.

14.3 ANY MATERIAL UPLOADED OR DOWNLOADED OR OTHERWISE PROVIDED TO OR OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE DATA THAT RESULTS FROM THE UPLOAD OR DOWNLOAD OF ANY SUCH MATERIAL.

14.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RED RAKE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

15. LIMITATION OF LIABILITY

15.1 TO THE MAXIMIUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT RED RAKE, ITS PARTNERS AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:

(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS, PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;

(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

(I) ANY CHANGES WHICH RED RAKE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);

(II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;

(III) YOUR FAILURE TO PROVIDE RED RAKE WITH ACCURATE ACCOUNT INFORMATION;

(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

15.2 THE LIMITATIONS ON RED RAKE’S LIABILITY TO YOU IN PARAGRAPH 15.1 ABOVE SHALL APPLY WHETHER OR NOT RED RAKE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

16. Copyright Policy

16.1 It is Red Rake’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminating the accounts of repeat infringers. Details of Red Rake’s Copyright Policy, which are expressly included in the “Terms”, can be found here.

17. Other Content

17.1 The Services may include hyperlinks to other web sites or content or resources. Red Rake may have no control over any web sites or resources which are provided by companies or persons other than Red Rake.

17.2 You acknowledge and agree that Red Rake is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

17.3 You acknowledge and agree that Red Rake is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

18. Changes to the Terms

18.1 Red Rake may make changes to the Universal Terms or Additional Terms from time to time, including but not limited to the cost and availability of the Services. When these changes are made, Red Rake will make a new copy of the Universal Terms available at https://www.redrake.com/terms/ and any new Additional Terms will be made available to you from within, or through, the affected Services.

18.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Additional Terms have changed, Red Rake will treat your use as acceptance of the updated Universal Terms or Additional Terms.

19. Alpha Test Terms

If you were selected by Red Rake to use the Services on either an Alpha Test basis you further agree to the following:

19.1 The Service may contain bugs, defects and errors and that the Service is not expected to function to its final design and release specifications. The test Service is being supplied to you without charge in exchange for your evaluation. The test Service may be terminated or suspended at Red Rake’s discretion.

19.2 You will provide Red Rake with periodic feedback that describes (i) the results of your use and evaluation of the Service, including any defects found in the Service and any information necessary for Red Rake to evaluate such defects, and (ii) any recommendations for changes or modifications to the Service, and Red Rake will own the results of such feedback for use in its knowledge base.

19.3 Red Rake shall have the right to use, in any manner and for any purpose, any information gained as a result of your use and evaluation of the Service. Such information shall include but not be limited to changes, modifications and corrections to the Service.

19.4 All discussions and feedback during the Alpha and Beta test are Red Rake confidential and will be protected and guarded by the same standards that you apply to your organization’s confidential and proprietary information, but in no event less than a reasonable standard.

20. General Legal Terms

20.1 Sometimes when you use the Services, you may (as a result of, or through your use of the Services) purchase data, which are provided by another person or company. Your use of this data may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.

20.2 The Terms constitute the whole legal agreement between you and Red Rake and govern your use of the Services (but excluding any services which Red Rake may provide to you under a separate written agreement), and completely replace any prior agreements between you and Red Rake in relation to the Services.

20.3 You agree that Red Rake may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.

20.4 You agree that if Red Rake does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Red Rake has the benefit of under any applicable law), this will not be taken to be a formal waiver of Red Rake’s rights and that those rights or remedies will still be available to Red Rake.

20.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

20.6 You acknowledge and agree that each member of the group of companies of which Red Rake is a Partner or Affiliate shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.

20.7 The Terms, and your relationship with Red Rake under the Terms, shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. You agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be settled by arbitration to be held in El Paso County, Colorado, before a single arbitrator selected by the parties. If the parties cannot agree on an arbitrator, each party shall select an arbitrator, and the selected arbitrators shall select a third person to serve as the arbitrator. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Red Rake and you shall each pay one half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses. Notwithstanding this, you agree that Red Rake shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

20.8 Term. Your right to use the Services will commence on the date you first click acceptance, use, or otherwise access the Services, and will remain in force until terminated in accordance with this Section. Usage rights will continue for the period specified in the Additional Terms, or if unspecified, at the earlier of one year or your breach of any of the terms or conditions herein. At termination, you will not use the Services.

September 11, 2020