Third-Party Terms and Conditions

Last updated September 18, 2023. Replaces all prior versions.

These RapidScale Third Party Terms and Conditions are incorporated by reference in the RapidScale Terms and Conditions available at: https://rapidscale.net/terms-and-conditions/ (“General Terms”). Defined terms not defined herein shall have the meaning ascribed to such terms in the General Terms.  Certain Services and/or features and functionality of the Services provided by RapidScale are provided to you utilize the services and/or products of third-party vendors and business partners, which services and/or products may include software, information, data or other services. Certain of these vendors and business partners require users who utilize such products and services to agree to additional terms and conditions. This page identifies third-party terms and conditions that are required by such third-party vendors and business partners as they apply to the corresponding Services set forth below. Your use of such Services constitutes your agreement to be bound by these additional terms and conditions. These third-party terms are subject to change at such third party’s discretion.

THIRD-PARTY PROVIDER OF SERVICES	THIRD-PARTY TERMS AND CONDITIONS
AlienVault	End-User License Agreement at: https://www.alienvault.com/open-threat-exchange/reputation-monitor/eula. Use of AlienVault Products and Services are also subject to the terms and conditions applicable to such use set forth in the MSSP Master License Agreement at: https://www.alienvault.com/terms/MSSP-Agreement-25Jan2017
Veeam	Veeam End User License Agreement (EULA) at: https://www.veeam.com/eula.html If Personal Information is being provided by End User, Veeam’s privacy policy applies, at: https://www.veeam.com/privacy-policy.html
Imperva	End-User License and Services Agreement at: https://www.imperva.com/legal/license-agreement/
Microsoft	If you are a covered entity or business associate under the Health Insurance Portability and Accountability Act (HIPAA), the Microsoft HIPAA Business Associate Agreement available at the following website address shall be applicable to in-scope Services provided via Microsoft: https://docs.microsoft.com/en-us/compliance/regulatory/offering-hipaa-hitech Certain third party Services provided by Microsoft, including The Microsoft 365 Services, are subject to the Third-Party Terms and Conditions provided by Microsoft via a click-through Microsoft Customer Agreement provided to you in connection with use of such Microsoft Service, the current version of which is currently available at https://www.microsoft.com/licensing/docs/customeragreement, which Microsoft Customer Agreement, as may be updated by Microsoft from time to time, must be accepted by you in connection with use and/or continued use (i.e. renewal) of such Microsoft Service. In connection with third-party Services provided by Microsoft, whereby your data is processed by Microsoft, Microsoft may collect, use, transfer, disclose, and otherwise process your personal data or your other data. Before obtaining personal data from data subjects, you must obtain their legally valid permission or have another valid legal basis to permit the processing and transfer of the personal data by us, Microsoft or Microsoft affiliates, and each of their respective representatives and service providers as contemplated under the Agreement. You shall (i) notify the individual users of the Microsoft Services that their personal data may be processed for purpose of disclosing it to law enforcement or other governmental authorities when required by applicable laws, as determined by us; and (ii) obtain individual users’ consent to the same. All other third party Services provided via Microsoft, whereby you are provided a license to use Microsoft software (e.g. Microsoft server licenses), are subject to the following Third-Party Terms and Conditions: Microsoft End User License Terms attached below as Attachment A. Microsoft Professional Services Data Protection Addendum at: https://www.microsoft.com/licensing/docs/view/Professional-Services-Data-Protection-Addendum-DPA Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM AND EXCLUDE, ON OUR BEHALF AND ON BEHALF OF OUR SUPPLIERS AND SUBCONTRACTORS, ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON INFRINGEMENT, SATISFACTORY CONDITION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES, SERVICE DELIVERABLES, HOTFIXES, PRODUCTS, OR ANY OTHER MATERIALS OR INFORMATION. Limitation of liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS WORK ORDER, NEITHER PARTY NOR THEIR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), SPECIAL, OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS OR REVENUES ARISING IN CONNECTION WITH THE AGREEMENT, SERVICES DESCRIPTION, THE ORDER DOCUMENT, ANY STATEMENT OF SERVICES, SERVICES, SERVICE DELIVERABLES, HOTFIXES, PRODUCTS, OR ANY OTHER MATERIALS OR INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. IN ANY EVENT, WHATEVER THE LEGAL BASIS FOR YOUR CLAIMS, OUR TOTAL LIABILITY (AND THAT OF OUR SUPPLIERS AND SUBCONTRACTORS) WILL BE LIMITED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TO DIRECT DAMAGES UP TO THE AMOUNT PAID IN THE AGGREGATE FOR THE SERVICES GIVING RISE TO THE CLAIMS.
Mimecast	Use of Mimecast products and services shall be subject to the applicable terms and conditions available at: https://www.mimecast.com/contracts. Data Processing Addendum at: https://www.mimecast.com/company/mimecast-trust-center/data-processing-agreement/
Zerto	https://www.zerto.com/zerto-terms-and-conditions-product/
VeloCloud (VMware Company)	VeloCloud End User Subscription Agreement at: https://www.velocloud.com/company/subscription/ . Data Processing Addendum at: https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/downloads/eula/vmware-data-processing-addendum.pdf
Duo Security, Inc. (a Cisco company)	Duo Security’s liability for all matters arising out of or related to its agreement with RapidScale and the Agreement, to the fullest extent permissible by law, are disclaimed. You are required to seek redress solely against RapidScale for any matters covered by such agreements. Duo Security Service Terms and Conditions at: https://duo.com/legal/terms-before-2019-11-20 If Personal Data is being provided, then this DPA governs: https://duo.com/assets/pdf/gdpr-data-protection-addendum.pdf
Nulia ACM, LLC	Nulia’s Terms of Use at: https://nulia.cloud/terms/ Nulia’s Privacy Policy at: https://nulia.cloud/privacy
N-Able	https://www.n-able.com/legal/end-user-license-agreement
Citrix – Desktop as a Service	Citrix License Agreement at: https://www.citrix.com/content/dam/citrix/en_us/documents/buy/enterprise-eula.pdf
VMware Horizon – Desktop as a Service	VMware End-User License Agreement at: https://docs.vmware.com/en/VMware-Horizon-DaaS/services/horizon-daas-platform-610-eula.pdf
Fortinet	https://www.fortinet.com/corporate/about-us/legal
Cisco	https://community.meraki.com/t5/user/termsofservicepage
Proficio	https://www.proficio.com/terms-of-use/

ATTACHMENT A

END-USER LICENSE TERMS

TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE

This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by RapidScale, Inc. (hereinafter referred to as “Customer”).  Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you.  Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.

1. DEFINITIONS.

“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.

“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.

“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.

“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.

“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product. 

2. OWNERSHIP OF PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution Software”). You may use, copy and/or install the Redistribution Software only in accordance with the terms of your agreement with Customer and this document and/or your agreement with Customer.
5. COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first.  You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
8. TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions.  In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
10. PRODUCT SUPPORT. Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries. 
11. NOT FAULT TOLERANT. The Products are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High-Risk Use”).
12. EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.  For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
14. INFORMATION DISCLOSURE. You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third-party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.