RAPIDSCALE TERMS AND CONDITIONS

Last updated September 25, 2019. Replaces all prior versions.

PLEASE READ THESE TERMS AND CONDITIONS (“T&Cs”) CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, YOU ACKNOWLEDGE AND AGREE THAT WE MAY CHANGE THESE T&Cs AT ANY TIME AS SET FORTH HEREIN.  YOU ARE RESPONSIBLE FOR REVIEWING AND INFORMING YOURSELF OF ALL APPLICABLE CHANGES. YOU SHOULD REFER REGULARLY TO OUR WEBSITE AT http://rapidscale.net/terms-and-conditions. TO UNDERSTAND THE CURRENT T&Cs AND OTHER POLICIES, AND TO ENSURE YOUR COMPLIANCE.  YOUR CONTINUED USE OF THE SERVICES BEYOND THE DATE WE POST CHANGES TO THE T&Cs ON OUR WEBSITE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES TO THE T&Cs. 

To the extent any term or condition set forth in the T&Cs expressly conflicts with any other term of any signed written agreement you and we have entered into, the terms of that other written agreement shall govern.

You represent and warrant that you have the lawful authority to bind you or the person or entity on whose behalf you represent to agree to accept the T&Cs, and that you have read, understand, acknowledge and agree (on your own behalf or on behalf of the person or entity for whom/which you are agreeing, as the case may be) to be bound by the T&Cs. 

  1. GENERAL. By using RapidScale, Inc.’s and its affiliates, subsidiaries, parents, and related companies’ (“RapidScale”, “us”, “our” or “we”) websites, web portals, applications, software, products and services, including, but not limited to, those services and products identified in your applicable Service Agreement(s) (collectively, the “Service(s)”), or by agreeing to these Terms and Conditions” (“T&Cs”), you (the “customer”, “client”, or “you”) agree to be bound by the Agreement (as defined below). RapidScale and you may be referred to herein as a “Party” or collectively, the “Parties”.  Except as expressly set forth herein, we may modify the T&Cs at our sole discretion and such modification shall be effective upon the earlier of electronic notice to you or revised T&Cs being posted at http://rapidscale.net/terms-and-conditions/. You accept modification to the T&Cs by continuing to use the Services, by continuing to pay for the Services, or by continuing to be a Party to a Service Agreement or other agreement for the provision of the Services with us.  These T&Cs are part of, and shall be incorporated into, any Service Agreement or any other agreement between you and us in which these Terms and Conditions are referenced, including all applicable service orders, service attachments, move-add change orders, change orders, addendums, attachments, purchase orders, service level agreements (“SLAs”) available at https://rapidscale.net/sla and any other documents that are expressly incorporated herein (collectively, the “Service Document(s)”) between you and us (together with these T&Cs, the “Agreement”). 
  1. SERVICES. RapidScale will provide the Services described in the applicable Service Document.  RapidScale may reject any Service Document and will not be bound by such Service Document until accepted in writing by a duly authorized representative of RapidScale.  Customer issued Service Documents will not modify the terms of the Agreement unless agreed to in writing by RapidScale.  Any requests for ancillary services not described in the applicable Service Documents may be provided on an individual case basis as agreed to in writing by the Parties.  These professional Services (“Professional Services”) are billable at RapidScale’s then-current standard hourly rate. 
  1. TERM AND TERMINATION.
    1. Effective Date. The Agreement becomes effective when the Services Agreement that incorporates these T&C’s by reference is accepted in writing by RapidScale  (the “Effective Date”).  Upon approval of your credit application (if any), we will begin, as soon as practicable, the provisioning, installation, connection, billing and testing necessary to provide the Services. For the avoidance of doubt, billing for some or all Services may begin before full implementation of the Services. The “Preliminary Period” begins on the Effective Date and continues until the first date billing for all Services (i.e. completion of implementation) provided under the Agreement commences (the “ Full Billing Date”). Thereafter, the term of this Agreement continues for the Initial Term period set forth in the applicable Service Agreement, unless earlier terminated as described in these T&Cs.   The “Term” begins on the Effective Date and includes the Preliminary Period, the Initial Term and any Renewal Term(s). 
    2. Term. These T&Cs shall continue in effect for the entire Term of the Agreement and for any subsequent “Renewal Term” (as defined in this Section 3b) unless otherwise agreed in writing between you and us.   The  Term will automatically renew for successive periods equal to the  Initial Term set forth in your applicable Service Document (the “Renewal Term”), unless either Party provides the other Party with sixty (60) days advance written notice of non-renewal.  We shall have no duty or obligation to provide the Services to you on a periodic basis after the expiration of the Initial Term or a Renewal Term unless we explicitly agree in writing.  We may in our sole discretion, but shall not be obligated to, provide you the Services after the Term for a period of not more than ninety (90) days if you request no later than thirty (30) days prior to the end of the Term (the “Month to Month Period”).  You will be charged the sum of one hundred fifty percent (150%) of the monthly recurring charge (“MRC”) set forth in the applicable Service Document for each thirty (30) day period during the Month to Month Period.  We may require you to pay a one (1) month deposit at the inception of the Month to Month Period at our discretion.  During the Month to Month Period, you will be required to provide thirty (30) days written notice if you wish to terminate prior to the end of the Month to Month Period.
    3. Termination. Unless otherwise provided in the Agreement, either Party may terminate the Agreement upon written notice if such terminating Party provides other Party with written notice of breach of the terms and conditions of the Agreement, including, but not limited to, the applicable provisions of these T&Cs, and such other Party fails to cure the breach within the thirty (30) day of such notice of breach. If you terminate the Agreement after our material breach and failure to cure as set forth above, then you will be responsible for all charges for the period before the date of termination and for Services provided during your transition of Services from RapidScale.  If, however, we terminate your Agreement as a result of your material breach, or as described in (d) below or you terminate your Agreement or any Services provided to you for any reason other than our material breach, you shall pay to us a termination charge as follows:   (i) if within the first year of the Term, non-recurring charges for the terminated Services, even if those charges had been initially waived and one hundred percent (100%) of the MRC times the remaining months of the Term; or (ii) if after the first year of the Term, you will be responsible for fifty percent (50%) of MRC times the remaining months in the Term and any underlying third-party costs that RapidScale incurred or will incur to fulfill its obligations under the Agreement.  
    4. RapidScale may suspend Service or terminate the Agreement: (i) upon five (5) days notice in the event of any payment default, if such default is not cured within that period or (ii) upon notice in the event of any violation of RapidScale’s Acceptable Use Policy (“AUP”) located on its website at http://www.rapidscale.net/acceptable-use-policy, which is incorporated herein by reference.
    5. If you elect to terminate your Agreement or any Service Document before the installation of the Services, you must do so in writing, and you shall pay to RapidScale as a termination charge an amount equal to: (i) the non-recurring charges applicable to the Services, even if initially waived, unless those charges have already been paid; and (ii) any third party provider charges or out-of-pocket expenses incurred by RapidScale (e.g., cancellation charges or annual software license fees); and (iii) if your Agreement is for a term of one (1) year or less, an amount equal to three (3) times the one (1) month recurring charges, or, if your Agreement is for a term of more than one (1) year, an amount equal to six (6) times the one (1) month recurring charges.
    6. The parties agree that any cancellation fees and early termination charges set forth in the Agreement constitute liquidated damages and are not intended as a penalty and represent a fair, reasonable and appropriate estimate of RapidScale’s damages. If a particular Service is terminated by Customer without cause or by RapidScale for cause, and RapidScale advises the Customer in writing that in RapidScale’s good faith judgment provision of a related Services is impractical or impossible (“Related Service”) as a result of such termination, then the Related Service shall be deemed terminated for cause by RapidScale and any applicable termination charges will apply.
    7. Any and all provisions in the Agreement which would reasonably be expected to be performed after the termination or expiration of the Agreement shall survive and be enforceable after such termination or expiration, including without limitation provisions relating to confidentiality, ownership, disclaimers, indemnification, limitations of liability, effects of termination, jurisdiction and governing law. 
  1. BILLING & PAYMENT.
    1. Billing. Unless provided otherwise in your Agreement, we will begin invoicing you for the Services after giving you notice that the Services are available for your use and will continue invoicing you on a monthly basis until the Agreement is terminated.  Except as otherwise set forth in your applicable Agreement, (a) MRCs will be billed monthly in advance, (b) varying or usage-based charged will be billed monthly in arrears and (c) installation, Professional Services, or other non-recurring charges will be billed upon completion of the customer kick off call to you unless otherwise agreed in writing.  If RapidScale is unable to deliver the Services on time due to a delay of Customer or its member, end users, agents, customers or any other third parties who utilize or access the Services via the Services provided hereunder (“End Users”), RapidScale may commence billing as of the earlier of: (i) the date of notice by RapidScale that the Services are available; or (ii) the date of notice by RapidScale that Services would have been available, but for such delay.   RapidScale may, upon ten (10) days prior notice, modify the payment terms or require a mutually acceptable form of security (e.g., a deposit) if Customer has repeatedly failed to pay its invoices by the due date (“Due Date”) or if there has been a material adverse change in its financial condition.  Notwithstanding any other provision to the contrary and not more than once per calendar year, RapidScale may increase the charges applicable to any Service provided hereunder in an amount not to exceed the latest annual increase in the Consumer Price Index, specifically, the U.S. Department of Labor, Bureau of Labor Statistics “All Items Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average”.  Such increase shall be effective upon the date set forth in RapidScale’s written notice thereof to Customer.  The foregoing shall not limit RapidScale’s ability to increase charges as set forth in a Service Document; or (ii) during any automatic renewal term.
    2. Payment. Unless otherwise provided in your Agreement, invoices are due in full and payable upon delivery, and become past due after the due date Due Date printed on the invoice.  In addition to the Service charges, Customer shall also pay all applicable Taxes and any third party charges pre-approved by Customer (e.g., installation, local access, utilities).  “Taxes” means any applicable foreign, federal, state, or local taxes and charges assessed or incurred in connection with the Service, including without limitation, all governmental excise, use, sales, value-added, environmental assessments or charges, and occupational taxes and other fees, or similar surcharges and levies, but excluding any taxes based on RapidScale’s net income. If you have a bona fide dispute with any of the amounts on the invoice (“Disputed Amount”), you shall pay all amounts not in dispute by the Due Date and provide us with a written request for a billing adjustment, together with all supporting documentation, within thirty (30) calendar days after the invoice date or your right to any billing adjustment shall be waived.  If we agree to adjust all or a portion of the Disputed Amount, you will not be obligated to pay a late payment charge on the adjusted amount.   If you fail to pay all non-Disputed Amount charges on our invoice by the Due Date, we may impose a late payment charge of 1.5% per month or the maximum rate allowed by law, whichever is less, on the unpaid balance until the amount is paid in full.  We may also suspend your Services until all delinquent amounts, including late payment charges, are paid in full.  An additional charge will apply to each returned check. For clarity, you are obligated to pay all applicable invoices without any requirement for RapidScale to provide a purchase order number on the invoices (or otherwise).
  1. CUSTOMER OBLIGATIONS.
    1. Use of Services. As an express condition of the provision of the Services, you and your End Users agree to comply with RapidScale’s AUP. You are solely responsible for your applications, content and data and for making sure your applications, content and data comply with the AUP. You are responsible for ensuring all End Users comply with your obligations under the AUP, and the restrictions in 5.b below. As between the parties, you are responsible for responding to all third-party requests concerning your use, and your End Users’ use, of the Services.  RapidScale may make reasonable changes to the AUP at any time and such change will be effective upon posting to RapidScale’s website or upon electronic notice to you.  RapidScale may suspend the Services or otherwise restrict access to the Services systems without notice if RapidScale learns of an AUP violation that, in its reasonable discretion, is unlawful or is likely to cause loss or liability for RapidScale or any third party.  You are responsible for all activity that occurs via your account. If you become aware of any unauthorized use of the Services, your account and/or passwords, you will notify as promptly as possible. RapidScale may immediately suspend all or part of your use of the Services if: (a) RapidScale believes you or any of your End User’s use of the Services could adversely impact the Services, other customers or their end users’ use of the Services, or the RapidScale network or servers used to provide the Services, without RapidScale’s prior written approval; (b) there is suspected unauthorized third-party access to the Services; (c) RapidScale believes it is required to suspend immediately to comply with applicable law; or (d) you are in breach of Section 5.b below. RapidScale may lift any such suspension when the circumstances giving rise to the suspension have been resolved. At your request, unless prohibited by applicable law, RapidScale will notify you of the basis for the suspension as soon as is reasonably possible. Any such suspension or restriction will be on the most limited basis as RapidScale determines is reasonably practical under the circumstances in order to address the underlying violation. 
    2. Restrictions. You will not, and will not allow third parties to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, benchmark, or otherwise attempt to extract any or all of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for high-risk activities; (c) sublicense, resell, or distribute any or all of the Services, unless we expressly agree otherwise in writing; (d) access the Services in a manner intended to avoid incurring fees or exceed usage limits or quotas; or (e) process or store any data or content that is subject to the International Traffic in Arms Regulations maintained by the Department of State.
    3. Responsibility for Content and Data. You are solely responsible for all data and content that you or any End User makes available on, uses, shares and/or processes through our Services.  You will obtain and maintain any required consents necessary to permit the processing and use of such content and data under the Agreement by the Services. You represent and warrant that such content and data will not infringe on, or contain any content or data that infringes on, or otherwise violates any copyright, patent or any other right held by a third party and that such content and/or will not violate any applicable law, rule, regulation or industry standard. 
    4. Automatic Credit Card payments. Unless otherwise provided in your applicable Agreement, any account with monthly recurring charges (“MRC”) of less than one thousand dollars ($1,000) will be set up for automated payments via credit card authorization form or automated clearing house (“ACH”) payment. For each transaction, in addition to the charge you have authorized, your credit card issuer and network may assess their customary transaction or handling charge, if any. If a charge is declined or reversed by the credit card issuer or network, you agree to pay us a service charge and to reimburse us for all reasonable costs of collection. Your credit card issuer may also assess its customary charge for such transactions.  If you choose to pay by ACH payment, you authorize RapidScale or its designated agent to initiate ACH transfer entries and to credit and/or debit the account identified herein for provision of the Services or any charge associated with your Agreement. This authorization shall remain in effect unless and until RapidScale has received written notification from you that this authorization has been terminated in such time and manner to allow RapidScale to act. You represent and warrant to RapidScale that the person entering into the Agreement on your behalf is duly authorized to act on your behalf as it relates to the Agreement including, but not limited to, this Section.
    5. Third-Party Products and Services. Certain Services are provided to you via third parties and may be subject to separate third-party terms and conditions. To the extent third-party terms and conditions supersede the Agreement, that third-party terms and conditions governs your use of that third-party Service. The third-party terms and conditions applicable to your use of certain Services are set forth on the Third-Party Terms and Conditions available at the following web address, which Third-Party Terms and Conditions are incorporated herein by reference: https://rapidscale.net/third-party-terms-and-conditions.
    6. Updates to the Services. We may modify, update, or discontinue the Services (including any portions or features) at any time, without liability to you or anyone else. However, for changes to paid Services, we will make commercially reasonable efforts to notify you of the modification, update or discontinuation in advance. If we discontinue the Services in their entirety, we will also allow you a reasonable time to download your data and content and we may provide you with a pro rata refund for any unused fees for that Service that you prepaid. 
  1. DISCLAIMER OF WARRANTIES. THE FOLLOWING DISCLAIMERS SHALL NOT LIMIT CUSTOMER’S ABILITY TO SEEK ANY APPLICABLE SLA REMEDIES. THE SERVICES AND ANY RELATED EQUIPMENT, SOFTWARE, AND OTHER MATERIALS PROVIDED BY RAPIDSCALE IN CONNECTION WITH THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED HEREFROM.  RAPIDSCALE MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM OR THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF ANY THIRD PARTY TECHNOLOGY OR SERVICES, ANY THIRD PARTY ACTION SUCH AS HACKING, OR ANY ACT OR OMISSION OF THE CUSTOMER, INCLUDING FAILURE TO ENCRYPT, AND RAPIDSCALE SHALL HAVE NO RESPONSIBILITY THEREFORE. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP YOUR DATA AND CONTENT, UNLESS WE EXPRESSLY AGREE OTHERWISE. NEITHER RAPIDSCALE NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. 
  1. LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR YOUR PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, NEITHER PARTY, NOR ITS AFFILIATES, CONTRACTORS, SUPPLIERS, OR AGENTS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA, DAMAGES TO SOFTWARE OR FIRMWARE, OR COST OF PROCURING OR TRANSITIONING TO SUBSTITUTIVE SERVICES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH A LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.  THE TOTAL AGGREGATE LIABILITY OF RAPIDSCALE ARISING FROM OR RELATED TO THE AGREEMENT SHALL BE LIMITED TO THE TOTAL NET PAYMENTS PAID BY CUSTOMER TO RAPIDSCALE FOR THE AFFECTED SERVICE WHICH GIVES RISE TO SUCH LIABILITY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES. 
  1. CONFIDENTIALITY. Neither Party shall, without the prior written consent of the other Party, use or disclose the Confidential Information of the other Party during the Term of the Agreement and for two (2) years following the expiration or termination hereof. As used herein, “Confidential Information” shall mean any non-public information owned or duly licensed by a Party relating to its respective business activities, products, services, financial affairs, technology, marketing or sales plans disclosed related to the Agreement, and received by, the other Party pursuant to the Agreement, including, but is not limited to, the terms and pricing of the Agreement.  Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving Party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving Party without use of the Confidential Information. Each Party will take all reasonable precautions to protect the other Party’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information.  Notwithstanding the foregoing, a Party may disclose Confidential Information:  (i) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and are contractually and/or legally subject to a duty of confidentiality, or (ii) pursuant to legal process; provided that, the disclosing Party shall, unless legally prohibited, provide the non-disclosing Party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure. 
  1. OWNERSHIP.
    1. Ownership. Except as expressly set forth in the Agreement, the Agreement does not grant either Party any rights, implied or otherwise, to the other Party’s content or any of the other Party’s intellectual property. As between the Parties, You own all rights, title and interest in your data and content, and RapidScale owns all rights, title and interest in the Services.
    2. Feedback. If you provide RapidScale feedback and suggestions about the Services, then you hereby grant RapidScale an irrevocable, perpetual, sublicensable right and license to fully exploit and use that feedback and suggestions for any purpose whatsoever, including, but not limited to, incorporation into the Services and/or the creation of derivative works. 
  1. INDEMNIFICATION. You will indemnify, defend, and hold RapidScale, its affiliate, contractors and third-party providers harmless from any and all third party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, or liabilities arising from or related to your use or resale of the Services, including, without limitation, (i) any breach of the Agreement by you and your End Users, and (ii) the content and data processed via the Services by you and your End Users. 
  1. PUBLICITY. Neither Party shall use, publicize, or issue any press release which includes the name, trademarks, or other propriety identifying symbol of the other Party or its affiliates, without the prior written consent of such other Party. 
  1. JURY WAIVER. In the event of litigation, each party expressly waives its right to have its claims or defenses heard by a jury. 
  1. FORCE MAJEURE. Neither Party will be held liable for any failure or delay in its performance under the Agreement (other than a failure to comply with payment obligations) due to a Force Majeure Event.   “Force Majeure Event” means an event beyond a party’s reasonable control, including but not limited to, acts of war; acts of God; earthquake; flood or extreme weather conditions; embargo; riot; sabotage; or terrorist acts.  If a Force Majeure Event prevents the provision of Service for a period of thirty (30) days, either Party may terminate the affected Service by providing thirty (30) days written notice to the other Party.  
  1. ACCESS TO DATA. We backup customer systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure.  These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup.  These backups may not be available to you or, if available, may not be useful to you outside of the RapidScale environment.

All data that you provide to RapidScale in connection with the Services is encrypted in transit and at rest and all Services use self-encrypting drives where applicable. The Parties agree and acknowledge that RapidScale does not receive access to your unencrypted data and that data, as it is used on RapidScale’s systems, is not reasonably likely to identify an individual given RapidScale’s internal procedures and controls and that such data is unintelligible to any person unless unencrypted. 

  1. NOTICES. All legal notices required to be given hereunder shall be in writing and deemed given if sent to the addressee specific below either (a) by registered or certified U.S. Mail, return receipt requested, postage prepaid, three days after such mailing; or (b) by national overnight courier service, the next business day.  For the avoidance of doubt, Customer’s Service change, disconnect notice, termination notice, notice of default, notice of non-renewal or request for Month to Month Period service  must be in writing sent as set forth above to:

All Notices

RapidScale, Inc.

17872 Gillette Avenue, Suite 450

Irvine, CA 92614

All other notices (e.g., notice reminder of non-payment) from RapidScale to you may be sent via email to the email address associated with your account and will be deemed given on the day such notice is delivered.

  1. MAINTENANCE. Customer acknowledges that the Services may be subject to maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair. 
  1. SECURITY. RapidScale shall use reasonable data center security practices consistent with industry standards. Under the Agreement, RapidScale is a data processor and not a data controller (i.e. you are the data controller). 
  1. GOVERNING LAW AND VENUE. The Parties agree that any term, provision, duty, right, obligations, cause of action, right of action or claim between the Parties shall be governed by the laws of the State of California, without giving effect to any choice or conflict of law provisions.  The Parties agree that the sole and exclusive venue for bringing any action arising under or related to the Agreement will be in Orange County, California.  Nothing in the Agreement will limit either party’s ability to seek equitable relief. 
  1. COMPLIANCE. Each Party agrees to comply with all applicable laws and regulations with respect to their rights and obligations under the Agreement. The Services are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements. The Agreement does not create any agency, partnership or joint venture between the parties. 
  1. SEVERABILITY/UNENFORCEABILITY. If any provision(s) of the Agreement are found to be invalid, illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced, and such provision(s) shall be deemed modified to the extent necessary to render such provision(s) enforceable and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreement of the Parties set out in the Agreement. 
  1. ASSIGNMENT. You may not assign or otherwise transfer your rights or obligations (or any portion(s) of them) under the Agreement, or delegate your obligations (or any portion(s) of them) to pay amounts you owe us in relation to your use of the Services without our prior written consent. You also may not assign or delegate any claims, rights of action, causes of actions or claims held by you against us without our prior written consent.  Any attempt to assign or delegate will be void and of no effect.  We may assign any or all of our rights and obligations (or any portion(s) of them) under the Agreement at any time without your consent. Any person to which we assign the Agreement or any right(s) or obligations under it shall be entitled to all such of our rights or obligations so assigned. 
  1. WAIVER. The waiver or modification by us of any term or condition hereof shall not void, waive, or modify any other term or condition. The failure by us to insist, in any one or more instances, upon the performance of any term of the Agreement shall not be construed as a waiver or relinquishment of such right to such performance or to future performance of such item.  A waiver granted on one occasion shall not constitute a waiver of any future occasion. We can delay enforcing any of our rights under the Agreement without losing them. 
  1. ENTIRE AGREEMENT. The Agreement (including, but not limited to, all signed and clicked-through agreements, Service Documents, Schedules, Exhibits and Amendments), contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments or understandings related hereto, if any, are hereby superseded. The terms located at a URL referenced in the Agreement are incorporated by reference into the Agreement. RapidScale may provide an updated URL in place of any URL in the Agreement.