Terms and Conditions

The following Terms and Conditions, together with any executed purchase order referencing them (an “Order”), and any additional statements of work and other exhibits, schedules and addenda attached hereto or to an Order, combine to constitute an agreement (the “Agreement”) between RapidWorks LLC, a limited liability company located at 262 Washington St, 5th Floor, Boston, MA 02108 United States  (“RapidWorks” or “we”), and the customer identified in the Order (“Customer” or “you”).  By executing the signature page to an Order, and in consideration of the mutual promises, intending to be legally bound, RapidWorks and Customer hereby agree as follows:

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, RapidWorks will use commercially reasonable efforts to provide Customer the Services.  Subject to the terms and conditions of this Agreement, RapidWorks hereby grants to Customer during the term of the respective Order the following limited, non-exclusive, non-transferable, non-sublicensable, right to: (a) permit persons authorized by Customer in accordance with the terms and conditions of this Agreement (“Authorized Users”)  to access and use the Software (defined below) solely as permitted hereunder in furtherance of Customer’s internal business operations; and (b) make a reasonable number of copies of all Documentation (defined below) and distribute those copies only to Authorized Users.  The foregoing access right is for the sole purpose of enabling Customer (and its Authorized Users) to use and enjoy the benefit of the Software as provided by RapidWorks, in the manner permitted by this Agreement and the relevant Order.

“Software” means software products provided by RapidWorks, including all software available on RapidWorks’ website or downloaded from RapidWorks or any third-party source, as detailed in the applicable Order, together with all applicable documentation, including the technical specifications, documentation, and user guides and all descriptions of or about the Software, or otherwise made available by or on behalf of RapidWorks (collectively, “Documentation”).  The term “Software” includes any source code, object code, binaries, executables, configurations, enhancements, additions, derivative works, or other modifications of or to the Software (including descriptions thereof).

1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s RapidWorks account.  RapidWorks reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.3 Subject to the terms hereof, RapidWorks will provide Customer with reasonable technical support services in accordance with the terms set forth herein and in the Order. RapidWorks will respond to all support inquiries, which must be submitted to support@rapidworks.com or (303) 500-3050, within 24 hours after Customer’s initial contact, and RapidWorks will use reasonable efforts to respond sooner.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer represents and warrants that all access to Software will be by Authorized Users.  In the interest of clarity Authorized Users will have been provided a valid user id and/or password and/or other identifier by RapidWorks, for example, through the Software (“Access Credentials”) at Customer’s request under any Order prior to accessing or using the Software.  No license or other right to utilize or access any Software is granted without a corresponding Order, and any access to or use of Software without a properly executed Order is expressly prohibited.

2.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by RapidWorks or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.   

2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of RapidWorks includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to RapidWorks to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  

3.2 Customer shall own all right, title and interest in and to the Customer Data.  RapidWorks shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services (as defined in Section 9) or support, and (c) all intellectual property rights related to any of the foregoing.     

3.3 Notwithstanding anything to the contrary, RapidWorks shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  RapidWorks will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other RapidWorks offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.   

4. PAYMENT OF FEES

4.1 Customer will pay RapidWorks the then applicable fees described in the Order Form for the Services and Professional Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  Customer may, during the course of its initial service term or then current renewal term, add additional Authorized Users to use the Software (either by exceeding the number of Authorized Users or by written notice to RapidWorks in advance), which will be invoiced, on a prorated basis, in accordance with the terms of the Order Form in effect. Customer may not reduce the number of Authorized Users during the course of the initial service term or then current renewal term.  RapidWorks reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that RapidWorks has billed Customer incorrectly, Customer must contact RapidWorks no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to RapidWorks’ customer support department.

4.2 RapidWorks may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by RapidWorks thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on RapidWorks’ net income.  

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, RapidWorks will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter RapidWorks may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

6. WARRANTY AND DISCLAIMER

RapidWorks shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Professional Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by RapidWorks or by third-party providers, or because of other causes beyond RapidWorks’ reasonable control, but RapidWorks shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, RapidWorks DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. INDEMNITY 

RapidWorks shall hold Customer harmless from liability to third parties resulting from infringement by the Service (including Professional Services) of any United States patent or any copyright or misappropriation of any trade secret, provided RapidWorks is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; RapidWorks will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by RapidWorks, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by RapidWorks, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by RapidWorks to be infringing, RapidWorks may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. 

8. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

9. PROFESSIONAL SERVICES TERMS

If Customer has ordered Professional Services from RapidWorks, the following terms shall govern Customer’s purchase and RapidWorks’ provision of those services.

9.1 “Professional Services” means and includes deployment services, implementation, project management, product configuration and consulting, IT and/or training services that Customer purchases from RapidWorks from time to time under an Order.

9.2 Professional Services will be made available to Customer by RapidWorks as specified in the applicable Order. Such Professional Services are subject to this Agreement, and any updates, or modifications, subject to mutual written consent, provided as part of the Professional Services shall be considered part of the Agreement hereunder.  

9.3 RapidWorks warrants that the professional services provided hereunder will be of a professional quality conforming to generally accepted industry standards.  In addition, RapidWorks represents and warrants that (a) none of the professional services or any part of this Agreement is or will be inconsistent with any obligation RapidWorks may have to others; (b)  the professional services as they are delivered to you will not infringe, misappropriate or violate any copyright or trade secret of any person or entity; (c) RapidWorks has the full right to provide you with the assignments and rights provided for herein (including without limitation, through execution of appropriate written agreements with its employees, agents and contractors).  THE FOREGOING WARRANTY IS PROVIDED IN LIEU OF ALL OTHER WARRANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE SPECIFICALLY DISCLAIMED.

9.4 Unless otherwise approved in writing, for the term of any Order and twelve (12) months beyond, you will not offer employment to any employee or individual subcontractor of RapidWorks who performed Professional Services under this Agreement or any related Order, or contract with, either individually or through a third party, any such employee or individual subcontractor of RapidWorks.

10. EXPORT AND GOVERNMENT CONTRACTS

Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 

11. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with RapidWorks’ prior written consent.  RapidWorks may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind RapidWorks in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.