December 01, 2017
These RapidStart, LLC (“RapidStart”) Terms and Conditions (the “Terms and Conditions”) will apply to any and all orders placed by a RapidStart Customer (“Customer”) via the RapidStart Portal (an “Order”). RapidStart’s acceptance of an Order is subject to and expressly conditioned on Customer’s assent to these Terms and Conditions, the Order and any other written agreements executed by RapidStart and Customer that reference or are executed pursuant to these Terms and Conditions (collectively, the “Agreement”).
The effective date of the Agreement (the “Effective Date”) will be the date that RapidStart first provides an authorized Customer with access to the Portal (as defined below) available via the RapidStart website www.rapidstartcrm.com, or any successor website thereto (the “RapidStart Site”). RapidStart and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.”
By accessing and using the Portal, Customer agrees to all the terms and conditions of these RapidStart Terms and Conditions, including the limitations on liability set forth herein and the provisions governing RapidStart’s ability to modify these Terms and Conditions set forth in Section 13.10. IF CUSTOMER DOES NOT AGREE WITH ALL THE TERMS AND CONDITIONS SET FORTH HEREIN, CUSTOMER IS NOT PERMITTED TO USE THE PORTAL.
A. RapidStart is in the business of providing certain IT products and services as more fully described in the Documentation or an applicable Order (the “Services”).
B. Customer desires to use the Products and/or Services for the benefit of Customer.
C. RapidStart will permit Customer to use the Products and/or Services in accordance with, and pursuant to the terms and conditions of, this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms will have the following meanings:
1.1 “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by a Party to the other Party concerning or related to this Agreement (whether before, on or after the Effective Date), which the receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information, is confidential information of the disclosing Party. Confidential Information includes, but is not limited to, the pricing terms for the Products and/or Services as set forth in the Order or otherwise, the Intellectual Property Rights of RapidStart, any Customer Data, the RapidStart Platform, components of the business plans, the Services, the Software, inventions, design plans, any proprietary software or technology of RapidStart, financial plans, computer programs, know-how, customer information, strategies and other similar information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving Party; (b) the receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing Party; (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the Confidential Information; or (d) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
1.2 “Customer” means any Person who purchases the Products and/or Services from RapidStart or otherwise benefits from Customer’s use of the Products and/or Services for such Person’s own business operations and not for further re-sale, redistribution or servicing of third parties.
1.3 “Customer Contract” means an agreement between RapidStart and any Customer pursuant to which RapidStart makes the Products and/or Services available to such Customer.
1.4 “Customer Data” means any and all Customer or User information, emails, data, text, audio, video, images or other content (a) provided by a Customer to RapidStart in connection with the purchase or receipt of the Products and/or Services or use of the RapidStart Platform; or (b) provided to, hosted and/or stored by RapidStart in connection with the provision of the Products and/or Services.
1.5 “Documentation” means RapidStart’s product and services descriptions, user instructions and other documentation relating to the RapidStart Platform which RapidStart may provide via the RapidStart Portal from time to time in connection with the provision of the Products and/or Services.
1.6 “Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, trade secrets, trade dress and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
1.7 “Portal” means the RapidStart platform, software and related technology provided by RapidStart for use by Customers with respect to the Products and/or Services.
1.8 “Person” means an individual, partnership, limited liability company, association, corporation or other entity.
1.9 “RapidStart Platform” means the Products and/or Services, the Software, Apps and any other technology used by RapidStart in the provision and operation of the Products and/or Services or supplied by RapidStart to Customer in connection with the provision or receipt of Products and/or Services, including the Portal, Apps and RapidStart Site.
1.10 “Software” means the RapidStart proprietary software provided by RapidStart to Customer in connection with the provision of the Products and/or Services as further described in the Documentation for each applicable Service.
1.11 “User” means each employee, contractor or agent of Customer who is authorized by RapidStart to use the Services.
3. Order Process; Portal.
3.1 Registration; Portal. RapidStart will provide Customer with an account, user name and password granting Customer access to and use of the Portal, located at the RapidStart Site. Customer is responsible for maintaining the confidentiality of any such account information and is fully responsible for all activities that occur under Customer’s account. During the registration process for the Portal, Customer will provide certain information, including contact information and any other information required by RapidStart. Customer represents and warrants that (a) all information provided during the registration process is accurate and complete; (b) Customer is at least eighteen (18) years of age and has the legal capacity to enter into this Agreement; and (c) if registering on behalf of an entity or organization, Partner is an authorized representative of such entity or organization with the authority to legally bind such entity or organization to this Agreement. If RapidStart determines that Customer has provided false, misleading or otherwise inaccurate information to RapidStart, RapidStart may terminate this Agreement immediately.
3.2 Orders. Customer may order Products and/or Services from RapidStart by submitting an Order via the Portal. Any Orders received from Customer by RapidStart shall be deemed to have been authorized by the Customer. Such Order will include all required information to enable RapidStart to provide the Products and/or Services for Customer as set forth in the Portal, including the name of the Customer, the number of Users included in the Products and/or Services (if applicable), the date on which Customer requires access to the Products and/or Services, and any other instructions or requirements pertinent to such Customer.
3.5 Information. Customer is responsible for providing complete and accurate information to RapidStart with respect to all orders for RapidStart to make the Products and/or Services available to such Customer.
4. Fees; Payment.
4.1 Fees. Customer will pay RapidStart the fees for the Products and/or Services in the amounts set forth in the Order (“Fees”). RapidStart will have the right to modify the Fees for any Services from time to time in its discretion. The then-current Fees for the Services will be available on the Portal or the RapidStart Site.
4.2 Payment Terms. Except as otherwise set forth in an applicable Order, all Fees for Customer’s purchase of Products and/or Services shall be due and payable at the time Customer submits an Order to RapidStart. Customer will pay for the Products and/or Services by providing RapidStart with valid payment information in order to facilitate such purchase, including, if applicable, a Payment Card number, billing address and any related payment information required by RapidStart. RapidStart will be deemed to have accepted an Order upon its receipt of valid payment information from Customer.
4.3 Taxes. All Fees payable by Customer are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Customer will provide RapidStart with any information requested by RapidStart to determine whether RapidStart is obligated to collect VAT from Customer, including Customer’s VAT identification number. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing RapidStart with legally-sufficient tax exemption certificates for each taxing jurisdiction. RapidStart will apply the tax exemption certificates to charges under Customer’s account occurring after the date RapidStart receives the tax exemption certificates. If any deduction or withholding is required by law, Customer will notify RapidStart and will pay RapidStart any additional amounts necessary to ensure that the net amount that RapidStart receives, after any deduction and withholding, equals the amount RapidStart would have received if no deduction or withholding had been required. Additionally, Customer will provide RapidStart with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
4.5 Payment Card Terms. Except as otherwise set forth in an applicable Order, Customer will pay RapidStart any subscription-based Fees via Customer’s credit or debit card (“Payment Card”) as set forth on the applicable Order. By providing RapidStart with Payment Card information (including account number, expiration date, card verification code, and billing address), Customer authorizes RapidStart to charge such Payment Card for all subscription-based Fees that are due and payable hereunder. RapidStart will initiate periodic charges to such Payment Card for all subscription-based Fees incurred during the Term. Customer’s authorization of such recurring charges will remain effective for the duration of the Term, unless Customer notifies RapidStart in writing that Customer revokes such consent or changes its payment preferences via the Portal. Customer further authorizes RapidStart to receive updated Payment Card account information from the issuer of the Payment Card.
5. Customer Data; Confidentiality.
5.1 Customer Data. Customer represents and warrants that: (a) Customer has the right to use, and to permit RapidStart to use, the Customer Data in connection with the Products and/or Services hereunder and (b) Customer has not received notice that any such Customer Data or the use of any such Customer Data in conjunction with the Products and/or Services infringe upon any third party Intellectual Property Rights or violate the terms of any license agreement or other agreement. Except with respect to RapidStart’s provision of Products and/or Services to Customer under an accepted Order, RapidStart bears no liability whatsoever for management of Customer accounts, including, but not limited to, RapidStart’s adherence to instructions from Customer regarding management of Customer accounts.
5.2 Confidentiality. Each Party will, during the Term of this Agreement and thereafter, maintain in confidence the Confidential Information of the other Party and will not use such Confidential Information except as expressly permitted herein. Each Party will use the same degree of care in protecting such Confidential Information as such Party uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Each Party will use such Confidential Information solely for the purpose of carrying out its respective obligations under this Agreement. In addition, each Party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its obligations under this Agreement; and (b) will only disclose such Confidential Information to its employees, consultants and third-party service providers who have a need to know such Confidential Information in order to perform their duties relating to this Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Confidential Information will be the property of the disclosing Party during the Term of this Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated in this Agreement. Notwithstanding the above, RapidStart is authorized to provide information to Microsoft as requested by Microsoft.
6. Proprietary Rights. As between RapidStart and Customer, RapidStart or its licensors own and reserve all right, other than the limited rights explicitly granted to Customer under this Agreement, title, and interest in and to the RapidStart Platform, including without limitation the Software and any other RapidStart proprietary software or technology utilized in the provision or use of the Products and/or Services, and all Intellectual Property Rights therein. Customer acknowledges that (a) all right, title and interest in and to the Products and/or Services, including the RapidStart Platform and Documentation provided in connection therewith, and all Intellectual Property Rights embodied therein or associated therewith, are and shall remain with RapidStart or its third party licensors; (b) no right or interest in the RapidStart Platform is conveyed other than the limited licenses granted herein; (c) the RapidStart Platform is protected by copyright and other intellectual property laws; and (d) the RapidStart Platform embodies valuable confidential and secret information of RapidStart or its licensors, the development of which required the expenditure of considerable time and money. Customer will not take or encourage any action during or after the Term of this Agreement that will in any way impair the rights of RapidStart in and to the RapidStart Platform, any proprietary software or technology of RapidStart, or any Intellectual Property Rights in and to any of the foregoing.
7. RapidStart Products and/or Services.
7.1 Provision of Products and/or Services. RapidStart will, subject to all other terms and conditions of this Agreement, use commercially reasonable efforts to provide the Products and/or Services in material accordance with the applicable Documentation for such Products and/or Services.
7.2 Access to and Use of the Software. During the Term of the Agreement, RapidStart grants to Customer a limited, nonexclusive, nontransferable right to permit and enable Users to access and use the RapidStart Platform solely in connection with Customer’s provision of Products and/or Services provided under the Agreement and to use the Documentation in connection with Customer’s exercise of such right. Except for the limited licenses granted hereunder, RapidStart reserves all rights not expressly granted and no such additional rights may be implied.
8. Customer Obligations and Acknowledgements.
8.1 Cooperation. Customer understands and agrees that Customer’s full, reasonable cooperation is required in order for RapidStart to properly, efficiently and effectively provide the Products and/or Services for Customer hereunder. Customer agrees to comply with all of RapidStart’s reasonable requests made in connection with the provision of Products and/or Services to Customer hereunder. Customer understands and agrees that its failure to so cooperate with RapidStart could result in RapidStart’s inability to properly, efficiently and effectively provide the Products and/or Services hereunder. RapidStart’s provision of the Products and/or Services is subject to (a) delays due to unanticipated Customer requests, complications with Customer’s systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of RapidStart, (b) Customer’s cooperation (including the cooperation of third parties under such Customer’s control) with RapidStart, as well as (c) Customer’s compliance with this Agreement or any other RapidStart Policy. RapidStart shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Customer’s failure to so cooperate.
8.2 Compliance with Law. Customer will obtain all registrations, licenses and permits required to perform its obligations under this Agreement. Customer will comply with all applicable laws, rules, regulations and orders relating to its performance under this Agreement (including, without limitation (a) those concerning the exporting, importing and re-exporting of computer software and the protection of privacy and personal information, and (b) laws and policies related to unsolicited, commercial e-mails (SPAM) or any illegal, objectionable or offensive activities).
8.6 Changes to Services. RapidStart may introduce new Products and/or Services and/or alter existing Products and/or Services without prior notice to Customers, Users or others, including revising the user interface, features, and functionality of the Products and/or Services as part of improvements or other necessary changes to the Products and/or Services during the Term. RapidStart may also update or revise the Documentation during the Term. RapidStart will have the right, in its sole discretion, to discontinue some or all of the Products and/or Services, or to change some or all of the Products and/or Services.
8.7 Use of the RapidStart Intellectual Property Rights. Customer will not, and will not encourage or permit any Users or other Person to (a) use the RapidStart Platform in any manner or for any purpose other than as expressly permitted by this Agreement; (b) access or use the RapidStart Platform in a way intended to avoid incurring fees to be paid to RapidStart pursuant to this Agreement; (c) access or use the RapidStart Platform in any way that violates this Agreement or any applicable laws, rules, or regulations; (d) install the RapidStart related Apps without a valid order; (e) modify, alter, tamper with, repair or otherwise create derivative works of any software , technology, content or any Intellectual Property Rights of RapidStart included in or used to provide the RapidStart Platform; (f) reverse engineer, disassemble or decompile the RapidStart Platform or any software or technology of RapidStart included in or used to provide the Services, or (g) attempt to discover or recreate the RapidStart Platform or any software, technology or Intellectual Property Rights of RapidStart.
8.8 Responsibility for Other Parties. Customer will be liable for any action that it permits, assists or facilitates any of its affiliates, officers, directors, employees, contractors, representatives, agents or other Person (each, a “Partner Party,” and collectively, “Customer Parties”) to take related to this Agreement, the Customer Data or the use of the RapidStart Platform. Customer will ensure that all Customer Parties comply with Customer’s obligations under this Agreement.
8.9 Notification of Unauthorized Use. Customer will immediately notify RapidStart in writing of any unauthorized use of the RapidStart Platform or breach of this Agreement that comes to Customer’s attention. In the event of any unauthorized use by any third party that obtained access to the RapidStart Platform directly or indirectly through Customer, Customer will take all steps necessary to terminate such unauthorized use and will provide RapidStart such cooperation and assistance as requested by RapidStart in connection with RapidStart’s actions to stop or prevent unauthorized use of the RapidStart Platform.
8.10 Limited Use of the RapidStart Platform. Customer’s access to the RapidStart Platform shall be limited to the purpose of providing the Products and/or Services to Customers. Customer may not access and use the RapidStart Platform for the purpose of developing (or intending to develop) a product or service that contains similar capabilities or functionalities as or that otherwise competes with the Software and Services.
8.11 Passwords. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other credentials and login information (collectively, “Passwords”) that have been provided or that are generated in connection with Customers’ use of the RapidStart Platform. Customer will not disclose or make available Passwords other than to authorized Users, if applicable, and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the RapidStart Platform. Customers are fully responsible for all activities that occur in connection with the Passwords.
8.12 Downtime. RapidStart may suspend or limit access to the RapidStart Platform for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the RapidStart Platform for any reason, including as a result of power outages, system failures, maintenance, upgrades or other interruptions.
8.13 Suspension, Limitation or Termination. RapidStart may, without liability to Customer, immediately suspend, terminate or limit access to the RapidStart Platform at any time in the event (a) RapidStart determines that the RapidStart Platform is being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any other RapidStart Policy; (b) RapidStart determines that the RapidStart Platform is being used in an unauthorized or fraudulent manner or that Customers have submitted fraudulent or inaccurate information to RapidStart; (c) RapidStart determines that Customers’ use of the RapidStart Platform adversely affects RapidStart’s equipment or service to others; (d) RapidStart is prohibited by an order of a court or other governmental agency from providing the Services; (e) of a denial of service attack or any other event which RapidStart determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (f) of a security incident or other disaster that impacts the Services or the security of Customer Data; or (g) Customer’s failure to pay RapidStart all Fees due and payable under this Agreement in accordance with Section 4. RapidStart shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s use of the RapidStart Platform or a Customer’s use of the Services in accordance with this Section 8.13.
9. Representations and Warranties; Disclaimer.
9.1 Warranty. Each Party represents and warrants that: (a) it is validly existing and in good standing under the laws of its state of incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) its execution and delivery of this Agreement and its performance of its obligations under this Agreement will not result in its breach of or default under any agreement or arrangement by which it is bound; (d) the person entering into this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (e) this Agreement is valid, binding and enforceable against it in accordance with its terms.
9.2 Disclaimers. THE RAPIDSTART CRM PLATFORM IS PROVIDED “AS IS.” EXCEPT AS PROVIDED IN SECTION 9.1, RAPIDSTART CRM AND ITS AFFILIATES MAKE NO (AND HEREBY DISCLAIM ALL) WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING, WITH RESPECT TO THE RAPIDSTART CRM PLATFORM, ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), (C) ANY WARRANTY THAT THE RAPIDSTART CRM PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA WILL NOT BE LOST OR DAMAGED, AND (D) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
10. Limitation of Liability. IN NO EVENT WILL RAPIDSTART CRM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS, SERVICES OR RAPIDSTART CRM APPLICATIONS PROVIDED BY RAPIDSTART CRM, INCLUDING THE RAPIDSTART CRM PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF RAPIDSTART CRM HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER RAPIDSTART CRM NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICES AS A RESULT OF ANY DOWNTIME OF ALL OR A PORTION OF THE RAPIDSTART CRM PLATFORM FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE RAPIDSTART CRM PLATFORM; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE OR LOSS OF ANY CUSTOMER DATA OR OTHER DATA. IN ANY CASE, RAPIDSTART CRM AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO RAPIDSTART CRM FOR SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.1 General. In addition to all other indemnification obligations set forth in other sections of this Agreement, Customer, at its sole expense, will defend, indemnify and hold harmless RapidStart and its directors, officers, employees, contractors, agents, successors and assigns (collectively, the “RapidStart Indemnitees”) from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) (collectively, “Liabilities”) resulting from any claim (including third party claims), suit, action, or proceeding against any RapidStart Indemnitee, whether successful or not, resulting from or arising in connection with (a) Customer or Customer Party’s use of the Customer Data or the RapidStart Platform; (b) any breach of this Agreement or an applicable Customer Contract or a violation of applicable law by Customer or a Customer Party; (c) the negligence or willful misconduct of Customer or any Customer Party; or (e) Customer’s failure to obtain any required consents or authorizations from Customer as described in Section 2.3 or Section 8.4 of this Agreement.
11.2 Process. RapidStart will reasonably notify Customer of any claim subject to the indemnification obligations set forth in this Agreement, but the failure of RapidStart to so notify Customer will only affect Customer’s indemnification obligations hereunder to the extent that such failure materially prejudices Customer’s ability to defend the subject claim. Provided that Customer promptly investigates and defends any such claim, Customer will have control over the defense and settlement thereof at its sole cost and expense. Notwithstanding the foregoing, Customer will not settle or compromise any claim in a manner that does not fully release RapidStart from such claim or results in a restriction on or admission by RapidStart or subjects RapidStart to any additional obligations. In the event that RapidStart determines, in its sole discretion, that Customer has failed to promptly investigate or rigorously defend any claim for which Customer has an obligation to indemnify, RapidStart will have the right to defend and settle such claim at Customer’s cost and expense.
12. Term; Termination; Effect of Termination.
12.1 Term. This Agreement will commence on the Effective Date and continue in effect unless otherwise terminated by the Parties hereunder (the “Term”).
12.2 Termination. Either Party may terminate this Agreement, with or without cause, upon five (5) days written notice to the other Party. In the event of termination under this Section 12.2 by RapidStart for any reason other than for Customer’s material breach of this Agreement, RapidStart will (a) perform all Services (other than subscription-based Services) under Orders received and accepted prior to such termination date; and (b) perform all subscription-based Services under Orders received and accepted prior to such termination date for the duration of the then-current subscription term set forth in the applicable Order (without renewal) or a period of ninety (90) days (whichever is shorter).
12.3 Effect of Termination. Upon any expiration or termination of this Agreement for any reason, (a) any and all Liabilities accrued prior to the date of such expiration or termination will survive; (b) each Party will promptly provide the other Party with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at the disclosing Party’s sole discretion and direction. The following sections will survive any expiration or termination of this Agreement: Sections 1, 4, 5, 6, 8.10, 8.14, 9.2, 10, 11, 12.3 and 13.
13. General Provisions.
13.1 Entire Agreement. This Agreement, the Order Form or any other terms and conditions referenced in these this Agreement (the “Additional Policies”) are the entire agreement of the Parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof.
13.2 Governing Law; Venue; Dispute Resolution. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Florida, without resort to its conflict of law provisions. The Parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in Hillsborough County, Florida, and the Parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
13.3 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, including by operation of law or otherwise, without the prior written consent of RapidStart, and any attempted transfer, assignment or delegation without such consent will be void and without effect. RapidStart may freely assign this Agreement and any right or duty under this Agreement to an affiliate or other Person by operation of law, change of control, merger, reorganization, or sale of stock or all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
13.4 Relationship of the Parties. Neither Party will, for any purpose, be deemed to be an employee, representative, owner or partner of the other Party; and, the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
13.5 References. Neither Party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, RapidStart may, during the Term of this Agreement, identify Customer as a Customer of the Services and display Customer’s logo and/or other branding materials on RapidStart’s website and other marketing materials.
13.6 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
13.7 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
13.8 Notice. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; (b) deposited with a pre-paid messenger, express or air courier or similar courier; or (c) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a Party at the Party’s address, facsimile number or email address as provided by Customer in the Portal. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (iii) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement. Further, either Party may change its contact information by notice in accordance with this Section or using tools available via the Portal.
13.9 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affect Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided, that the affected Party: (a) provides the other Party prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
13.10 Modifications to the Terms and Conditions. RapidStart may modify these Terms and Conditions or any Additional Policies at any time by posting a revised version of these Terms and Conditions or Additional Policies on the RapidStart Portal. Unless otherwise set forth in this Agreement, the revised terms shall be effective upon the earlier of (a) ten (10) days after posting and/or notifying Customer of the changes; or (b) upon Customer’s acceptance if RapidStart provides a mechanism for the acceptance of the revised terms, such as a click-through confirmation or acceptance button. By continuing to use the RapidStart Platform after the effective date of any revisions to these Terms and Conditions or any Additional Policies, Customer agrees to be bound by the revised Terms and Conditions or any revised Additional Policies. It is Customer’s responsibility to check the RapidStart Portal regularly for changes to these Terms and Conditions or the Additional Policies, as applicable. If Customer disagrees with any modifications to these Terms and Conditions or any Additional Policies, Customer’s sole and exclusive remedy shall be to terminate the Agreement in accordance with Section 12 herein.