Terms and Conditions

RAPIDSCALE TERMS AND CONDITIONS

Last updated November 1, 2021. Replaces all prior versions.

PLEASE READ THESE TERMS AND CONDITIONS (“T&Cs”) CAREFULLY AS THEY CONSTITUTE A LEGALLY BINDING AGREEMENT THAT CONTAINS 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. 

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 that is still in effect, the terms of that other written agreement shall govern until such other agreement expires, terminates or is superseded.

You represent and warrant that you have the lawful authority to bind yourself 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 these 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”. 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”). 

2. 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 expressly 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. 

3. 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 material 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 by Customer of the Agreement, including, without limitation, the Acceptable Use Policy (“AUP”) located 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. 

4. 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 (collectively, “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. For clarity, verifiable third-party cost increases in providing the Services (e.g., increased regulatory charges, carrier charges, tariffs and taxes, etc.) may be directly passed through to Customer at any time. 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. 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 during any automatic renewal term.
   2. Payment. Unless otherwise provided in your Agreement, all fees are nonrefundable and all invoices are due in full and payable upon delivery, and become past due after the due date printed on the invoice. In addition to the Service charges, Customer shall also pay any third-party charges (e.g., installation, local access, utilities). Customer shall be responsible for all sales, use, withholding, value added and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, RapidScale’s income, revenues, gross receipts, personnel, or real or personal property or other assets. 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 irrevocably 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).

5. 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 the Agreement and the AUP. You are solely responsible for your applications, content and data and for making sure your applications, content and data comply with the Agreement and the AUP. You are responsible and liable for your End Users and shall ensure all End Users comply with the Agreement, including 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 immediately suspend the Services or otherwise restrict access to the Services systems without notice if RapidScale learns of any violation that, in its sole 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 RapidScale 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; (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. Any such suspension or restriction will be on the basis as RapidScale determines, in its sole discretion, is 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, lend, distribute or otherwise make available any or all of the Services, unless we expressly agree otherwise in writing; (d) use the Cloud Services for the benefit of any person other than as expressly permitted, whether for timesharing, service bureau, or other purposes; (e) access the Services in a manner intended to avoid incurring fees or exceed usage limits or quotas;  (f) remove or alter any product identification or proprietary-rights notices, legends or symbols from any Services or documentation; (g) process or store any data or content that is subject to the International Traffic in Arms Regulations maintained by the Department of State; (h) use the Services in a manner not consistent with the documentation, (i) disclose to any third party the performance measures of the Services or benchmark tests or other comparisons of the Services with other services or software; (j) access the Services for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes; or (j) otherwise use any Service except as expressly provided in this Agreement.
   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. Furthermore, you are solely responsible for properly handling and processing notices that are sent to you regarding your data or content, such as by any person claiming that your data or content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act or access requests under privacy laws. You will ensure that your data and the use of your content and data in connection with the Services by you and the End Users will not violate any applicable law. You will obtain and maintain any required consents necessary to permit the processing, storage and use of such content and data under the Agreement by the Services. You represent, warrant and covenant that such content and data will not infringe on, or contain any content or data that infringes on, or otherwise violates any copyright, patent, privacy 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.  You further acknowledge and agree that You are solely responsible for configuring and maintaining appropriate encryption for any data that you transmit or process through the Services.  RapidScale does not monitor, and makes no representations regarding, the sufficiency of the encryption technologies implemented by customers.  
   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 web page that is 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 such modification, update or discontinuation results in a material deterioration (i.e., reduction) in the Services. 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.

6. 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: (A) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED HEREFROM; (B) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE SERVICES OR THIRD PARTY SERVICES WILL BE FREE OF HARMFUL COMPONENTS, AND (D) THAT ANY CONTENT, INCLUDING CUSTOMER DATA, WILL BE SECURE OR NOT OTHERWISE DAMAGED OR LOST.  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. NEITHER RAPIDSCALE NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

7. EXCLUSION OF DAMAGES: The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. NEITHER RAPIDSCALE NOR ITS REPRESENTATIVES SHALL HAVE ANY OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER’S DATA.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RAPIDSCALE OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, REPRESENTATIVES, SUPPLIERS, CONTRACTORS OR AGENTS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT OF, INABILITY TO USE, OR LOSS, INTERRUPTION OR DELAY OF, THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER RAPIDSCALE OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, REPRESENTATIVES, SUPPLIERS, CONTRACTORS OR AGENTS  WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. RAPIDSCALE IS NOT RESPONSIBLE FOR ANY USE OR MISUSE OF THE SERVICES OR MATERIALS BY CUSTOMERS AND ANY RESULTS THEREOF.

8. LIMITATION ON LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF RAPIDSCALE AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, REPRESENTATIVES, CONTRACTORS, SUPPLIERS AND AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT, EXCEED 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. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE FOREGOING LIMIT.

9. 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.

10. 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 or trade secrets. 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. 

11. INDEMNIFICATION. You will indemnify, defend, and hold RapidScale, its affiliates, contractors, licensors 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 or the AUP by you or your End Users, (ii) the content and data processed via the Services and provided by you and your End Users; (iii) actual or alleged infringement or misappropriation of any third party’s intellectual property or trade secret right by data, content or materials provided by you or your agents to us or uploaded to the Services; (iv) relating to unauthorized access to our systems to the extent caused by an act or omission of you, your End Users or personnel resulting in damage to, impairment of, disablement of any hardware, software, or data of RapidScale; (v) relating to a claim that any of your personnel is a RapidScale employee and not your employee or an independent contractor, including: any claim that we are required to pay taxes or employee benefits on behalf of any of your personnel and any claim, lawsuit, or proceeding brought against us by any of your personnel alleging an employer-employee relationship between the plaintiff and RapidScale; and (vi) for the grossly negligent or willful acts or omissions of you or your agents. 

12. 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; provided that RapidScale may include your name in a list of RapidScale’s customers that RapidScale may provide on a confidential basis to RapidScale’s potential customers. 

13. JURY WAIVER. In the event of litigation, each Party expressly waives its right to have its claims or defenses heard by a jury.

14. 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; invasion; hostilities; acts of God; earthquake; flood or extreme weather conditions; embargo; riot; explosion; sabotage; terrorist threats or acts; government order, law, or actions; embargo or blockades; national emergency; quarantine conditions; pandemic, shortage of adequate power or facilities; and other similar events. 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.

15. ACCESS TO DATA. We back up 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.

    The Parties agree and acknowledge that the customer will implement appropriate encryption for all data processed using the Services and accordingly, any such data is not reasonably likely to identify an individual given that such data is unintelligible to any person unless unencrypted.

16. NOTICES. Notices under this Agreement shall be in writing and delivered to the Parties stated herein. A written notification by RapidScale may include, without limitation, electronic notice (including the email associated with your account) and/or notice via an invoice, billing insert or other billing communication sent to you. The effective date of any notice hereunder shall be the date of delivery of such notice and not the date of mailing. The mailing addresses of the parties are set forth below and to be sent via overnight courier with proof of delivery: To RapidScale at RapidScale, Inc., 301 Hillsborough Street, Suite 1300, Raleigh, NC 27603, with a copy to: Cox Communications, Inc., 6205-B Peachtree Dunwoody Road, Atlanta, Georgia 30328, Attn: Assistant General Counsel, Cox Business, Legal Department; and to Customer at the address set forth in the Agreement.

17. MAINTENANCE. Customer acknowledges that the Services may be subject to maintenance or repair and will cooperate in a timely manner and provide access and assistance as necessary to allow such maintenance or repair. 

18. 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).

19. 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 Georgia, without giving effect to any choice or conflict of law provisions. The Federal or state courts situated in Fulton County, Georgia have exclusive jurisdiction over the resolution of all disputes that arise under this Agreement, and each Party irrevocably submits to the personal jurisdiction of such courts. The Parties expressly agree to exclude: (i) the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement and the performance of the Parties contemplated herein, to the extent that such Convention might otherwise be applicable; and (ii) the Uniform Computer Information Transactions Act (as it may be adopted, titled and amended from time to time). Nothing in the Agreement will limit either Party’s ability to seek equitable relief.

20. COMPLIANCE; INDEPENDENT CONTRACTOR. 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. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

21. 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. 

22. 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.

23. 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.

24. 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.

25. CHANGES/AMENDMENTS TO T&Cs. RapidScale, in its sole discretion, may modify, amend, add, supplement and/or remove any of the T&Cs and/or any related policies and linked terms (URLs) from time to time (“Revisions”) upon written notice to you by any means and all such Revisions will be effective thirty (30) days after notice is issued (“Opt-Out Period”) unless you opt out as described in this Section. You may opt out of the Revisions by providing written notice to RapidScale via email at Opt-Out@rapidscale.net or via a letter sent via overnight courier with proof of delivery to RapidScale, Inc., Attn: Meighan Agresta, 301 Hillsborough Street, Suite 1300, Raleigh, NC 27603, stating that you are opting out of the Revisions. Your written notification to RapidScale must include your company/entity name, address and account number, the name and position of the person submitting the notification on behalf of you, as well as a clear statement of which Revisions you are opting out of. You must submit your written notice opting out of the Revisions within the thirty (30) day Opt-Out Period, or you shall be deemed to accept the Revisions. Further, your continued use and/or payment for Services after the thirty (30) day Opt-Out Period shall also be deemed acceptance of all Revisions. If you opt out of any Revisions, RapidScale may (i) immediately terminate the Agreement without penalty or liability to you or (ii) RapidScale may provide notice to you that the opted-out Revisions will not apply to you and the Agreement will then continue under the most recent contract terms for the then-current term.  Until RapidScale provides notice of its election of option (i) or (ii) in the preceding sentence, the Agreement shall continue under its most recent contract terms excluding any Revisions properly opted out by you. This paragraph states your sole and exclusive remedy for any Revisions. Notwithstanding anything to the contrary in this Agreement, RapidScale may make Revisions that it deems are minor or concern products or services which are not currently under contract with you, and such updates shall be deemed effective after the update is posted online, with or without actual notice to you.

 

RAPIDSCALE MANAGED DEVICE AS A SERVICE ADDENDUM

Last updated December 1, 2020. Replaces all prior versions.

THIS ADDENDUM (“ADDENDUM”) IS A SUPPLEMENT TO THE RAPIDSCALE TERMS AND CONDITIONS (“T&C’s”) AND IS HEREBY INCORPORATED THEREIN BY REFERENCE. THIS ADDENDUM SETS FORTH ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO YOUR PURCHASE OF RAPIDSCALE’S MANAGED DEVICE AS A SERVICE (“MDAAS”), WHICH CONSTITUTES A SERVICE UNDER THE T&Cs. THE T&C’s SHALL BE APPLICABLE TO THE MDAAS. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THE T&Cs AND THE TERMS AND CONDITIONS OF THIS ADDENDUM WITH RESPECT TO THE MDAAS, THE TERMS AND CONDITIONS OF THIS ADDENDUM SHALL PREVAIL.

1. GENERAL TERMS

1. 1. Devices. “Device(s)” means the hardware, equipment, products and the like provided by RapidScale to you pursuant to the Agreement as part of the MDaaS.
   2. Price List. The price list (“Price List”), which is available at https://rapidscale.net/wp-content/uploads/2020/11/MDaaS_PriceList.pdf, sets forth the service fees for Devices available for lease in connection with the MDaaS under the Agreement and the other fees (e.g. incident rate, overage, shipping fees) described in this Addendum. Notwithstanding anything to contrary in the T&Cs, the Price List may be updated at any time without notice. You (customer) acknowledge and agree that you are responsible for checking the Price List in connection with your purchase of Devices and the related fees.
   3. Service Term. RapidScale leases the Devices to you as set forth on the Service Document for a fixed service term of three (3) years (“Service Term”), unless otherwise indicated in the Service Document. For the avoidance of doubt, a Sales Order shall constitute a Service Document. RapidScale retains ownership and title to the Device during the Service Term. Upon any termination of the Service Term prior to expiration of the Service Term, RapidScale shall invoice you the balance of the fees remaining for the balance of the Service Term as an early termination fee, plus any additional fees or taxes related to your payment.
   4. End of Service Term Options. Upon any expiration or termination of the Service Term for a Device, you may exercise the following options: (i) returning the Device and renewing the Service Term with a new Device selected from the Price List and set forth in a Service Document; or (ii) purchase the Device, with notice to RapidScale, at fair market value as determined by RapidScale, in its discretion, using customary  depreciation methods. If you fail to return the Device to RapidScale within thirty (30) day of expiration or termination of the Service Term, RapidScale shall invoice you the fair market value of the Device as described above, plus any applicable fees and taxes, and you will be deemed to have exercised your option to purchase the Device. Ownership of the Device shall transfer to you upon RapidScale’s receipt of your payment for the purchased Device. The fair market value price does not include taxes.
   5. Data and Third-Party Software. Notwithstanding anything to the contrary in the Agreement, RapidScale is not responsible for any data or third-party software on the Device, including, but not limited to, anti-virus, spam or encryption software, as well as any backup or encryption obligations. As between RapidScale and you, you are responsible for backups of any data stored or maintained on Devices.
   6. Taxes. All prices are exclusive of all excise, sales, use, transfer and other taxes and duties imposed with respect to the MDaaS. You will pay for taxes during each Service Term, included with your monthly payments or assessed otherwise. The actual total taxes may be higher or lower depending on the tax rates in effect or the value of the Devices at the time the tax is assessed.
   7. Risk of Loss. You and your end users use the Devices at your or their own risk. You are still responsible for payment and other performance obligations even if any Device is lost, confiscated or forfeited under governmental authority, damaged or stolen, subject to the limited extended support obligations in Section 3 below.
   8. Restrictions on Transfer. You may not transfer, assign or sublease any Device without RapidScale’s prior written consent.

2. IMAGING AND SOFTWARE SERVICES

1. 1. Imaging. RapidScale will provide the operating system images for the Device(s) as described in the Service Document. Any additional service/images should be purchased via a Service Document.
   2. Administrator Rights. You have global administrator rights to the Windows environment for your end user Devices and are responsible for domain connecting their Windows Devices to the local domain.
   3. Software on Devices. You are responsible for all updates, patching and software installed on Devices. RapidScale has no responsibility for software, files and the like installed on Devices by you and your end users.

3. SUPPORT & MANAGEMENT

1. 1. Support. RapidScale will provide RapidResponse Support to you as defined in the Managed Device as a Service (MDaaS) Responsibilities Matrix available at: https://rapidscale.net/wp-content/uploads/2020/11/MDaaS_SupportMatrix.pdf. RapidScale will provide escalation support up to 10% of your installed base of Devices in any given month, measured monthly based on the number of support calls. RapidScale reserves the right to charge a support call incident fee set forth on the Price List per additional support call incident beyond this 10% of installed base of Devices.
   2. RMA. Return material authorizations (“RMAs”) refers to Devices authorized by RapidScale for return by you to RapidScale in connection with a claim of theft, loss or accidental damage under RapidScale’s extended support program for Devices.
   3. Extended Support. RapidScale provides extended support program for Devices during the Service Term as follows. You agree to give RapidScale written notice promptly after any Device is subject to a total loss, theft or accidental damage, including any supporting documentation or information we may reasonably request to evidence the circumstances and nature of the total loss, theft or accidental damage.
      • • Theft / Loss Protection:   In the event of theft or loss of the Device, RapidScale  will replace the Device with a new, rebuilt or refurbished Device of equal or similar features and functionality. Replacement is limited to one replacement per Device during the Service Term (i.e. the replacement Device is not eligible for another theft/loss claim during the Service Term).   A police report and applicable paperwork must be submitted as part of any theft claim for a replacement Device.
        • Accidental Damage:   You may return a Device for repair due to accidental damages during the Service Term. Replacement Device may not be the exact same Device and can be a new, rebuilt or refurbished Device of equal or similar features and functionality.  There may be multiple repairs during the Service Term, provided that repairs are limited to the total cost of repairs, as determined by RapidScale in its discretion, during the Service Term to not more than the MSRP of originally purchased Device.
        • Extended Support Additional Terms.  RapidScale is not responsible for any data lost during RMA process, including repair and/or replacement of Devices. Any replacement Device returned via the RMA process described in this Extended Support Section will be provided with the standard image. RapidScale will not be responsible for transfer of your files, software or data from the returned Device to the replacement Device.
        • Overage Fee for RMAs. Your RMA’s under the extended support program for Devices described above are limited to 1.25% of the installed-base of Devices per month. If your RMAs for extended support during any month exceed 1.25% of your installed base of Devices in a given month, then RapidScale may charge you the overage fees set forth on the Price List for overage RMAs per additional Device.
        • EXCLUSIONS. THE EXTENDED SUPPORT PROGRAM DOES NOT COVER ANY LOSS, REPAIRS OR DAMAGE CAUSED BY OR RESULTING FROM:(A) INSTALLATION, REMOVAL, REINSTALLATION OR IMPROPER INSTALLATION OF ATTACHMENTS OR PERIPHERALS; (B) COST OF PREVENTATIVE MAINTENANCE, CLEANING; (C) ANY SERVICE EVENTS NOT REPORTED DURING THE SERVICE TERM; AND (D) INFIDELITY OR DISHONESTY BY YOU OR ANY OF YOUR EMPLOYEES. IF A  DEVICE EXPERIENCES A FAILURE OR DAMAGE THAT IS EXCLUDED FROM COVERAGE UNDER THIS SECTION OR IN THE EVENT OF A REPAIR INCIDENT WHEREIN THERE IS A “NO PROBLEM FOUND” DIAGNOSIS, THEN YOU ARE RESPONSIBLE FOR ALL REPAIR COSTS INCLUDING SHIPPING COSTS. SHOULD THE MANUFACTURER OF YOUR DEVICE GO OUT OF BUSINESS OR THE MANUFACTURER NO LONGER PROVIDES CERTAIN SUPPORT NECESSARY FOR REPAIR OR PARTS SOURCES HAVE BEEN EXHAUSTED DURING THE SERVICE TERM, RAPIDSCALE SHALL BE EXCUSED FROM PERFORMANCE HEREUNDER AND THE SERVICE TERM MAY BE TERMINATED BY RAPIDSCALE WITH NO FURTHER PAYMENT OBLIGATION.
   4. RapidScale Administrator Account. RapidScale maintains an administrator account on the Windows 10 Devices. You may elect to remove this local administrator account; however, if you do so, you will limit RapidScale’s ability to support you during the RMA process described, which may result in additional service fees.
   5. Disclaimer of Warranties. EXCEPT FOR ANY WRITTEN WARRANTY THAT  MAY  BE  PROVIDED  WITH  THE DEVICE THAT YOU RECEIVE FROM RAPIDSCALE, AND TO THE EXTENT PERMITTED BY LAW, THE DEVICES ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, RAPIDSCALE MAKE NO, AND EXPRESSLY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE DEVICES.

4. SHIPPING FEES
   1. Default – Standard Shipping Fees. Standard shipping for RMA and end of Service Term is available (based on 2 business days if shipped by 3pm), which will be charged at the per Device standard shipping rate set forth on the Price List, to be invoiced monthly in arrears. You will be responsible for obtaining a return shipping label from RapidScale Support.
   2. Expedited Shipping. Expedited shipping for RMA and end of Service Term is available (based on next business day if shipped by 3pm) which will be charged at per Device expedited shipping fee set forth on the Price List, to be invoiced monthly in arrears. You will be responsible for obtaining  a return shipping label from RapidScale Support.