Ratio Seller Agreement
Published on: April 13th, 2022
1.1. The Parties to this Agreement.
This Agreement describes the contractual relationship ("Agreement") between Seller and Ratio Technologies, Inc. (“Ratio”)regarding Seller's use of the Ratio service as described below and the Ratio website and/or Application (“Website”), and the Seller's access to Seller's Ratio account information and services through the Website (collectively, the "Ratio Services" or "Services") concerning services and/or products rendered by Seller to their customers ("Subscribers”).
This Agreement shall commence on the date accepted by Seller sign-up (“Effective Date”) and, unless otherwise agreed upon in writing, shall continue for one (1) year from the Effective Date (“Initial Term”). This Agreement shall renew automatically for additional one (1) year periods (each a “Renewal Term”) following the expiration of the Initial Term and any subsequent Renewal Term unless: i) either party has provided thirty (30) days’ advance written notice to the other party of its intent not to renew; or ii) as otherwise stated in a writing signed by the parties. The combination of the Initial Term and any Renewal Term shall be the “Term”.
2. Description of Ratio Services.
Ratio is a payment processing platform that enables Sellers to sell their accounts receivable arising out of Subscriber subscriptions (“Accounts Receivable”) and obtain such annual recurring revenue, less certain fees, in an upfront payment from or through Ratio.
3. Using Ratio.
3.1. Ratio Account.
To start using Ratio as a Seller, Seller needs to open a Ratio Account. You agree that all Account information provided by you is accurate. The parties further agree as follows:
Seller consents to Ratio, its agents and representatives and any credit reporting agency engaged by Ratio, to (i) investigate any references given or any other statements or data obtained from or about Seller for the purpose of this Agreement, (ii) obtain consumer and business credit reports on Seller, and (iii) to contact business references provided by Seller in the application process, at any time now or for so long as Seller continue to have any obligation owed to Ratio as a consequence of this Agreement or for Ratio’s ability to determine Seller’s eligibility to enter into any future agreement with Ratio.
Seller authorizes Ratio and its agents to investigate its financial responsibility and history, and will provide to Ratio any authorizations, bank or financial statements, tax returns, etc., as Ratio deems necessary in its sole discretion during the term of this Agreement. Seller waives, to the maximum extent permitted by law, any claim for damages against Ratio or any of its affiliates relating to any investigation undertaken by or on behalf of Ratio as permitted by this Agreement or disclosure of information as permitted by this Agreement.
Seller shall complete all registration and onboarding documentation and provide the data and information requested by Ratio in connection therewith. Without limiting the foregoing, such information requests may include: (a) information relating to customer contracts, (such as payment terms, payment history, pricing, duration of any subscription period), and (b) all financial information relating to the Seller (including financial statements, bank records, and CRM data). Furthermore, Seller shall allow Ratio to seamlessly integrate Ratio’s technology platform with Company’s banking, billing, accounting, and CRM systems in order to allow Ratio to qualify, and monitor the Company’s customer contracts and financial health.
3.2. Appointment at Payment Processor.
Seller hereby appoints Ratio as an independent contractor to service and administer the Accounts Receivable. In order to facilitate the collection of amounts payable under such Accounts Receivable, the parties agree that Ratio shall act as Seller’s agent for collection, and that Ratio shall invoice Subscribers and collect such amounts as may be due thereunder.
3.3. Credit Risk.
If, for any reason, a Subscriber fails to pay any amounts which are part of any Accounts Receivable, Seller is liable to pay such amounts as further described below.
3.4. Ratio Process.
During the term of the Agreement, Seller agrees to enable Ratio as a payment processor within Seller’s checkout interface. Seller can offer the Ratio Services to Subscribers by implementing the Ratio functionality on any of Seller's user interfaces. These interfaces include, but are not limited to, Seller's website(s), Seller's application(s) or Seller's point of sale device(s). Acceptance of the Ratio Services constitutes a binding agreement by Seller, to provide the product or services purchased in the transaction.
4.1. Order Acceptance.
For each Subscriber who submits an order to purchase a product or service from a Seller, and who has been approved by Ratio, Ratio shall create an order form (“Ratio Order”). The Order shall be transmitted to Seller and shall specify the discount applicable to that Order (“Discount”).
Funds from Ratio-processed transactions typically settle into Seller's external bank account within seven (7) business days after Ratio receives an Ratio Order. The amount paid by Ratio to Seller shall be equivalent to the amount paid by user as shown in an Ratio Order, less the Discount. Seller is required to have current, proper and active bank account information on file with Ratio at all times (i) prior to utilizing the Ratio functionality on any of Seller’s user interfaces, (ii) during the Term, and (iii) for thirty (30) Days following cancellation, termination or expiration of this Agreement. The exact settlement time will depend on explicit agreements and approval decisions made by Ratio. In some cases, due to risk decisions Ratio may implement a settlement time longer than this initial range. Seller will be notified of any proposed settlement changes one (1) Business Day before these changes are implemented. Ratio retains the right to suspend all settlements for Seller’s benefit at any time Seller does not have current, proper and active bank account information on file with Ratio.
5.2. Authorization to Debit Account(s).
Seller authorizes Ratio to automatically process via auto-debit/ACH Sellers on-file bank account to cover returns and refunds and reconcile amounts owed to Ratio, including any amounts resulting from a user’s failure to pay any Account Receivable.
5.3. Unclaimed Balances.
In the event Seller’s bank account is closed or otherwise unable to receive funds (whether such funds are resting in the MIP or otherwise) for at least sixty (60) days (“Unclaimed Funds”), Ratio will attempt to contact the Seller about the Unclaimed Funds, in writing, at Seller’s contact information on file with Ratio. If Seller fails to provide commercially reasonable means to receive the Unclaimed Funds within sixty (60) days from the date of the initial request for Seller’s updated bank account information, then Ratio reserves the right to segregate and distribute the Unclaimed Funds at its discretion by check to Seller’s last known address on file with Ratio, or otherwise in accordance with applicable Delaware Law. It is Seller’s sole responsibility to ensure that Ratio has current, proper and active bank account information on file with Ratio at all times and Seller acknowledges and agrees that Ratio shall not be liable for disposition of any Unclaimed Funds made in accordance with applicable law at any time Seller has failed to maintain such bank account information with Ratio.
6. Disputes with Subscribers.
6.1. Refund Fees.
Seller is solely responsible for resolving any disputes or refunds requested by Subscribers,.
7. Ratio's Communication.
7.1. Notices to Seller.
Seller agrees that Ratio may provide Seller Communications about Seller's Account and the Ratio Services electronically. Any electronic communications will be considered to be received by Seller within 1 hour after the time Ratio or emails it to Seller .
7.2. Contacting Seller.
In order to contact Seller more efficiently, Ratio may at times contact Seller using calls or text messages at the telephone number(s) Seller has provided us. Ratio may place such calls or texts to (i) provide notices regarding Seller's Account or Account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. Seller agrees that Ratio and Ratio's service providers may contact Seller using autodialed or prerecorded message calls and text messages to carry out the purposes Ratio have identified above. Ratio may share Seller's phone number(s) with service providers with whom Ratio contracts to assist Ratio in pursuing these interests, but will not share Seller's phone number(s) with third parties for their own purposes without Seller's consent. Standard telephone minute and text charges may apply. Ratio and Ratio's service providers will not use autodialed or prerecorded message calls or texts to contact Seller for marketing purposes at the telephone number(s) Seller designate unless Ratio receives Seller's prior express written consent.
7.3. Recording Calls.
Seller understands and agrees that Ratio may, without further notice or warning and in Ratio's discretion, monitor or record telephone conversations Seller or anyone acting on Seller's behalf has with Ratio or its agents for quality control and training purposes or for its own protection. Seller acknowledges and understands that, while Seller's communications with Ratio may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Ratio, and Ratio does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
8. Marketing Seller's Brand and Ratio's Privacy Policies.
8.1. Use of Seller's Name, Brand mark, Social and public assets.
By signing up with Ratio, Seller is agreeing to let Ratio use Seller's company name, brand mark, social and public assets in Ratio marketing materials and communications during the Term of the Agreement.
8.2. Privacy of Others; Marketing.
8.3. Password Security.
Seller is responsible for maintaining adequate security and control of any and all IDs, passwords, personal identification numbers (PINs), or any other codes that Seller uses to access the Ratio Services.
Each party agrees to protect the other party’s Confidential Information, using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. The receiving party may use and copy the Confidential Information only to the extent necessary for the performance of its obligations under the Agreement. The receiving party agrees not to disclose Confidential Information to any person except those Affiliates and representatives who need to know such information in connection with the performance of the Agreement. The receiving party shall be responsible for any violation of the terms of this Section by its representatives or Affiliates and shall promptly notify the disclosing party of any unauthorized use or disclosure of Confidential Information of which the receiving party becomes aware. The receiving party may disclose Confidential Information to the extent required by law, or with the prior written consent of the disclosing party. Ratio is entitled to disclose Confidential Information to its subcontractors, external advisors and Affiliates, provided that such parties are subject to confidentiality obligations at least as protective as those set forth in this section. In the event of legally required disclosure, the receiving party shall make reasonable efforts to give the disclosing party notice of such requirement prior to disclosure so that the disclosing party may seek a protective order or other appropriate remedy to prevent or limit the scope of disclosure.
9. Identifying Seller.
Seller authorizes Ratio, directly or through third parties, to make any inquiries we consider necessary to validate Seller's identity. This may include asking Seller for further Information, requiring Seller to provide Seller's date of birth, a taxpayer identification number, current bank account information and other Information that will allow us to reasonably identify Seller, requiring Seller to take steps to confirm ownership of Seller's email address or financial instruments, ordering a credit report, or verifying Seller's Information against third party databases or through other sources. We may also ask to see Seller's driver’s license or other identifying documents at any time. Ratio reserves the right to close, suspend, or limit access to Seller's Account and/or Ratio Services in the event we are unable to obtain or verify this Information.
10. Activities Restricted Throughout Ratio Services.
10.1. Restricted Activities.
In connection with Seller's use of our Website, Seller's Account, the Ratio Services, or in the course of Seller's interactions with Ratio, other Subscribers, or third parties, Seller will not:
Breach this Agreement, the Acceptable Use Policy or any other agreement or policy that Seller has agreed to with Ratio;
Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, antidiscrimination or false advertising);
Infringe Ratio's or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy.
Provide false, inaccurate or misleading information;
Send or receive what we reasonably believe to be potentially fraudulent funds, nor continue to process or ship an order that Ratio has identified as fraudulent;
Use less efforts and processes to detect and prevent fraud for transactions using the Ratio Services than it would use in transactions not using the Ratio Services;
Publish or send any marketing materials that mentions the Ratio Services, the Ratio marks, or any terms and conditions regarding the Ratio Services, without first obtaining Ratio’s prior written consent;
Refuse to cooperate in an investigation or provide confirmation of Seller's identity or any Information Seller provides to us;
Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
Conduct Seller's business or use the Ratio Services in a manner that results in or may result in complaints, Disputes, Reversals, fees, fines, penalties or other liability to Ratio, Subscribers, third parties or Seller;
Have a credit score from a credit reporting agency that indicates a high level of risk associated with Seller's use of the Ratio Services;
Use Seller's Account or Ratio Services in a manner that Ratio, or any other EFT network reasonably believes to be an abuse of the EFT system or a violation of card association or network rules;
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our Website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our Website, Application, or the Ratio Services;
Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers; or
harass and/or threaten our employees, agents, or other Subscribers.
11.1. Seller's Liability.
Seller is responsible for all reversals, fees, fines, penalties and other liability incurred by Ratio, a Subscriber, or a third party caused by or arising out of Seller's breach of this Agreement, and/or Seller's use of Ratio Services. Seller agrees to reimburse Ratio, a Subscriber, or a third party for any and all such liability.
11.2. Reimbursement for Seller's Liability.
In the event that Seller is liable for any amounts owed to Ratio, Seller authorizes Ratio to immediately remove such amounts from Seller's bank account on file. If Seller does not have sufficient funds in Seller's bank account, Seller acknowledges that Ratio may engage in collection efforts to recover such amounts from Seller.
11.3. Actions by Ratio - Restricted Activities.
If Ratio, in its sole discretion, believes that Seller may have engaged in any Restricted Activities, we may take various actions to protect Ratio, Subscribers, other third parties, or Seller from reversals, fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
Ratio may close, suspend, or limit Seller's access to Seller's Account or the Ratio Services (such as limiting Seller's ability to accept payments, make withdrawals, or remove financial Information);
Ratio may contact Subscribers the Seller has interacted with, contact Seller's bank, and/or warn other Subscribers, law enforcement, or impacted third parties of Seller's actions;
Ratio may update inaccurate Information Seller provided to us;
Ratio may refuse to provide the Ratio Services to Seller in the future;
Ratio may hold any balance for up to 180 Days if reasonably needed to protect Ratio against the risk of liability or if Seller has violated Ratio's Acceptable Use Policy;
11.4. Data Security.
11.5. Limitations of Liability.
IN NO EVENT SHALL WE, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF RATIO, OUR PARENT OR OUR AFFILIATES BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, APPLICATION, THE RATIO SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), UNLESS AND TO THE EXTENT PROHIBITED BY LAW. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS, TO SELLER IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES PAID IN THE TWELVE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, RATIO, OUR PARENT, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND SUPPLIERS ARE NOT LIABLE, AND SELLER AGREES NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (1) SELLER’S USE OF OR SELLER’S INABILITY TO USE RATIO’S WEBSITES, APPLICATIONS, AND SERVICES; (2) DELAYS OR DISRUPTIONS IN RATIO’S WEBSITES, APPLICATIONS, AND SERVICES; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING RATIO’S WEBSITES, APPLICATIONS OR SERVICES OR ANY SITE OR SERVICE LINKED TO RATIO’S WEBSITES, APPLICATIONS OR SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN RATIO’S WEBSITES, APPLICATIONS OR SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM; (5) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES; (6) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO SELLER’S ACCOUNT; (7) SELLER’S NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR SELLER’S LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS SELLER AGREEMENT OR RATIO’S POLICIES. RATIO RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS SELLER AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
11.6. NO WARRANTY.
THE RATIO SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. RATIO, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF RATIO, OUR PARENT OR OUR AFFILIATES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, SELLERABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Ratio does not guarantee continuous, uninterrupted or secure access to any part of the Ratio Services, and operation of our site may be interfered with by numerous factors outside of our control. Ratio will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but Ratio makes no representations or warranties regarding the amount of time needed to complete processing because the Ratio Services are dependent upon many factors outside of our control, such as delays in the banking system or the U.S. and Canadian or international mail service. Certain Ratio Services may not be available to Seller based on residency, geographic location or other eligibility criteria. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to Seller. This paragraph gives Seller specific legal rights and Seller may also have other legal rights that vary from state to state, country to country.
11.7. Compliance with Laws.
Each party agrees to comply with all applicable laws and regulations including, but not limited to, regulations around anti-corruption, anti-bribery, consumer protection, export, data protection, data security, prohibition of modern slavery/human trafficking and equal opportunity. Failure to comply with this section shall be a material breach of this agreement.
12. Termination and Force Majeure.
12.1. For Cause.
Either Party may terminate for cause in the event of any one or more of the following events: (a) a Party fails to make a payment of any amount due and payable pursuant to this Agreement and such failure remains unremedied for a period of ten (10) business days after the non-defaulting Party gives written notice thereof; (b) such Party fails to perform, satisfy or comply with any material obligation, condition, covenant or other provision contained in this Agreement and such failure remains unremedied for a period of thirty (30) days after the other Party gives written notice thereof specifying the nature of such failure in reasonable detail or immediately where such a cure can not be effectuated in a timely manner or there is continued risk to Ratio; (c) any representation or warranty by such Party contained in this Agreement fails to be true and correct in any material respect as of the date when made or at any time during the Term; (d) a Bankruptcy, liquidation or insolvency event; and/or (e) there are excessive chargebacks or losses.
12.2. Force Majeure.
If a party is unable to perform or is delayed in performing, in whole or in part, its obligations under this Agreement, as a direct result of a Force Majeure Event affecting such Party, then that Party shall promptly notify the other Party of the Force Majeure Event with reasonably full particulars and timing of such event. Such Party also shall promptly notify the other Party when the Force Majeure Event terminates or no longer adversely affects its ability to perform under this Agreement. The obligations of the Party giving notice, so far as they are affected by the Force Majeure Event, shall be suspended during, but not longer than, the continuance of the Force Majeure Event, and any failure to perform or adhere to any obligation or covenant hereunder shall not constitute a Termination Event, Ratio Termination Event, or Seller Termination Event, as applicable.
12.3. Limitations upon Account Closure.
If we are conducting an investigation on Seller’s account, we may hold Seller’s Balance for up to 180 Days to protect Ratio, its affiliates, or a third party against the risk of Reversals, fees, fines, penalties and other liability. Seller will remain liable for all obligations related to your Account even after the Account is closed. Seller agrees to an extended funds settlement period of 60 days at account closure to ensure funds are available for returns and refunds.
13. Disputes with Ratio.
13.1. Contact Ratio First.
If a dispute arises between Seller and Ratio, our goal is to learn about and address Seller's concerns and, if we are unable to do so to Seller's satisfaction, to provide Seller with a neutral and cost-effective means of resolving the dispute quickly. Disputes between Seller and Ratio regarding the Ratio Services may be reported to firstname.lastname@example.org.
13.2. Applicable Law.
Seller agrees that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in this Seller Agreement, the laws of the State of California without regard to principles of conflict of laws, will govern this Seller Agreement and any claim or dispute that has arisen or may arise between Seller and Ratio.
13.3. Agreement to Arbitrate.
Seller and Ratio each agree that any and all disputes or claims that have arisen or may arise between Seller and Ratio, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court, except that Seller may assert claims in small claims court, if Seller's claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
13.3.1. Prohibition of Class and Representative Actions and Non-Individualized Relief.
SELLER AND RATIO AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH SELLER AND RATIO AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER RATIO USERS.
13.3.2. Arbitration Procedures.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of this Seller Agreement as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of subsection (13.3.1) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Ratio should be sent to Ratio, Inc., at email@example.com. Ratio will send any Notice to Seller to the physical address we have on file associated with Seller's Ratio Account; it is Seller's responsibility to keep Seller's physical address up to date. All information called for in the Notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought. If Seller and Ratio are unable to resolve the claims described in the Notice within 30 Days after the Notice is sent, Seller or Ratio may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The arbitration shall be held in San Francisco, CA. If the value of the relief sought is $10,000 or less, Seller or Ratio may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Seller and Ratio subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, Seller and/or Ratio may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by Seller or Ratio shall not be disclosed to the arbitrator(s).
The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
13.3.3. Costs of Arbitration.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules unless otherwise stated in this Agreement to Arbitrate. At Seller's request, Ratio will pay as much of the filing, administration, and arbitrator fees as the arbitrator(s) deem necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator(s) determine the claim(s) Seller asserts in the arbitration to be frivolous, Seller agrees to reimburse Ratio for all fees associated with the arbitration paid by Ratio on Seller's behalf that Seller otherwise would be obligated to pay under the AAA's rules.
With the exception of any of the provisions in subsection (13.3.1) of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in subsection (13.3.1) of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of this Seller Agreement will continue to apply.
13.3.5. Future Amendments to the Agreement to Arbitrate.
Notwithstanding any provision in this Seller Agreement to the contrary, Seller and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Ratio prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between Seller and Ratio. We will notify Seller of amendments to this Agreement to Arbitrate by posting the amended terms on www.ratiotech.com at least 30 days before the effective date of the amendments and by providing notice through email. If Seller does not agree to these amended terms, Seller may close Seller's account within the 30 day period, and Seller will not be bound by the amended terms.
13.4. Insolvency Proceedings.
If any proceeding by or against Seller is commenced under any provision of Seller's government's bankruptcy code or under any other bankruptcy or insolvency law, Ratio will be entitled to recover all reasonable costs or expenses (including reasonable attorneys' fees and expenses) incurred in connection with the enforcement of this Agreement.
13.5. No Waiver.
Our failure to act with respect to a breach by Seller or others does not waive our right to act with respect to subsequent or similar breaches.
Seller agrees to defend, indemnify and hold Ratio, our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of Ratio, our parent, or our Affiliates, harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of Seller's breach of this Agreement (including, without limitation, breach of any representation made or warranty given by Seller herein), Seller's improper use of the Ratio Services, and/or Seller's violation of any law or the rights of a third party. Notwithstanding anything to the contrary contained herein, this Section 13.6 shall survive the termination or expiration of this Agreement.
13.7. Release of Ratio.
If Seller has a dispute with one or more Subscribers, Seller releases Ratio (and our parent, our Affiliates, and our and their respective officers, directors, agents, joint ventures, employees and suppliers) from any and all Claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, Seller expressly waive any protections that would otherwise limit the coverage of this release to include only those claims which Seller may know or suspect to exist in Seller's favor at the time of agreeing to this release.
14. Ratio's Intellectual Property.
14.1. Intellectual Property.
"Ratio," and all logos related to the Ratio Services are either trademarks or registered trademarks of Ratio or Ratio’s licensors. Ratio grants Seller a revocable, non-transferable, global license to use Ratio’s trademarks in accordance with Ratio’s marketing guidelines and in accordance with the terms and Term of this Agreement. Seller may not copy, imitate or use them without Ratio’s prior written consent. Also, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Ratio. Seller may not copy, imitate, or use them without our prior written consent. Seller may use HTML logos provided by Ratio through our Seller services or affiliate programs without prior written consent for the purpose of redirecting web traffic to the Ratio Services. Seller may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to Ratio or the Ratio Services or display them in any manner that implies Ratio’s sponsorship or endorsement. All right, title and interest in and to the Ratio Website, any content thereon, the Ratio Services, the technology related to the Ratio Services, and any and all technology and any content created or derived from any of the preceding is the exclusive property of Ratio and its licensors.
14.2. License Grant.
If Seller is using Ratio software such as an API, developer's toolkit or other software application that Seller has downloaded to Seller's computer, device, or other platform, then Ratio grants Seller a revocable, non-exclusive, non-transferable license to use Ratio's software in accordance with the documentation. This license grant includes the software and all updates, upgrades, new versions and replacement software for Seller's personal use only. Seller may not rent, lease or otherwise transfer Seller's rights in the software to a third party. Seller must comply with the implementation and use requirements contained in all Ratio documentation accompanying the Ratio Services. If Seller does not comply with Ratio’s implementation and use requirements Seller will be liable for all resulting damages suffered by Seller, Ratio and third parties. Ratio may change or discontinue any APIs upon notice to Seller. Seller agrees not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software. Seller acknowledges that all rights, title, and interest to Ratio’s software are owned by Ratio. Any third party software application Seller uses on the Ratio Website is subject to the license Seller agreed to with the third party that provides Seller with this software. Ratio does not own, control nor have any responsibility or liability for any third party software application Seller elects to use on the Ratio website and/or in connection with the Ratio Services. If Seller is using the Ratio Services on the Ratio website, or other website or platform hosted by Ratio, or a third party, and are not downloading Ratio’s software or using third party software applications on the Ratio website, then this section does not apply to Seller's use of the hosted Ratio Services.
14.3. License Grant from Seller to Ratio; IP Warranties.
When providing Ratio with content or posting content using Ratio Services, Seller grants us a nonexclusive, worldwide, royalty-free, transferable, and sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights Seller has in the content, in any media known now or in the future during the Term of the Agreement. Further, to the fullest extent permitted by applicable law, Seller waives Seller's moral rights and promise not to assert such rights against Ratio, its sublicensees or its assignees. Seller represents and warrant that none of the following infringe any intellectual property or publicity right: Seller's provision of content to Ratio and products or services to the Subscriber, Seller's posting of content using Ratio Services and promotion of Seller’s products or services to the Subscriber, and Ratio’s use of such content (including of works derived from it), products or services in connection with Ratio Services.
15. General Provisions.
Seller may not transfer or assign any rights or obligations Seller has under this Agreement without Ratio’s prior written consent. Ratio reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
15.2. Complete Agreement.
This Agreement, along with any applicable policies and agreements on the Legal Agreements page on the Ratio Website, sets forth the entire understanding between Seller and Ratio with respect to the Ratio Services. Sections which by their nature should survive will survive the termination of this Agreement. Unless stated otherwise in this Agreement, if any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced.
Unless stated otherwise in this Agreement, if any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall be severed from this agreement,, and the remaining provisions or parts thereof shall continue in full force and effect, without amendment.
15.4. Electronic Signature.
By clicking “I Accept” or “I Agree”, you acknowledge having received, read, understood and agree to be bound by this Agreement, including any policies, attachments, addendums, schedules, or exhibits referenced in this Agreement. You agree that your electronic signature is the legal equivalent of your manual ink signature and that an electronic signature will be deemed an original and may be used as evidence of execution. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action signifying your acceptance, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature. This Agreement will be deemed to satisfy any writings requirements of any applicable law, notwithstanding that the agreement set out in this Agreement is written and accepted electronically. All contracts between you and Ratio completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed written agreement.