This Software as a Service Agreement (the “Agreement”) is by and between Rapidious Inc, an Delaware C Corp (“Rapidious”), and you, as an individual or entity (“Customer”), and covers all the legal details governing Customer’s use of the Services (as defined below).  By accepting this Agreement through execution of an Order Form that references it or clicking a box, Customer agrees to all terms and conditions. If you are entering into this Agreement on behalf of a company or other legal entity, you represent you have the authority to bind such entity to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, Customer must not accept this Agreement and shall not use the Services.

1. SERVICES. Subject to the terms of this Agreement, Rapidious shall provide Customer a non-exclusive, non-assignable, and non-transferable right to access and permit Customer and Customer’s Authorized Users (as defined below) the right to access and use Rapidious’s software, platform, and any version of other additional software, applications, features, functionality, or services provided by Rapidious that are used by Customer under this Agreement (the “Services”).  The Services include an online, proprietary platform, offered as a software as a service, to assist the Customer in its understanding its competition, trends, and recommending pricing for their products. Rapidious offers a 45-day satisfaction guarantee on the Services (“Guarantee”). Pursuant to the Guarantee, Customers may request a full refund for the purchase of Services by providing notice via email, for any reason, within 45 days of integration of the Services.

“Authorized User” means any individual authorized, by virtue of his relationship to or permissions from Customer, to access the Services in accordance with Customer’s rights under this Agreement. An Authorized User can be Customer’s employee, contractor, or agent.

2. RESTRICTIONS. Customer shall not (i) license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available the Services in any way to any third party, other than an Authorized User; (ii) modify or make derivative works based upon the Services, disassemble, reverse compile, or reverse engineer any part of the Service or any associated documentation; or (iii) create Internet “links” to the Services or “frame” or “mirror” any part of the Service, including any content contained in the Service.

3. PILOT PROGRAM.

(a) Rapidious may offer a free trial of our Services, as well as any features, products, or services provided on a free trial basis and for a limited period of time (“Pilot Period”). Any Services offered during the Pilot Program may be offered to select Customers and may not include all functional elements of the Service or may undergo changes during Customer’s use of the Services. Rapidious may immediately, and without notice, remove any Services, features, or products for any reason without liability to Customer. Any Services, features, or products provided during the Pilot Program shall be free until the earlier of (i) the end of the Pilot Period set forth by Rapidious in writing (email sufficient), (i) the start date of any purchased subscriptions ordered by Customer for the Service, feature, or product being evaluated during the Pilot Period, or (iii) termination by Rapidious in its sole and absolute discretion. Customer may be required to register and designate a payment method for the Pilot Period. Additional Services terms and conditions may apply and appear separately on a separate agreement (collectively, the “Pilot Terms”). If applicable, the Pilot Terms are incorporated into this Agreement by reference and are legally binding.

(b) ALL USAGE DURING THE SUBSCRIPTION PERIOD (AS DEFINED BELOW) AND ANY CUSTOMER DATA (AS DEFINED BELOW) AND CUSTOMIZATIONS CREATED DURING THE PILOT PERIOD MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION FOR THE SAME SERVICE OR EXPORT SUCH CUSTOMER DATA, BEFORE THE END OF THE PILOT PERIOD.

4. CUSTOMER’S RIGHTS AND OBLIGATIONS.

(a) Use of the Services. Customer is responsible for all activity occurring under Authorized User accounts for access to the Services and shall comply with all applicable local, state, national, and foreign laws related to data privacy and the transmission of technical or personal data, including personally identifiable information. Customer shall: (i) notify Rapidious immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Rapidious immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Services of any of the content in the Services that is known or suspected by Customer; and (iii) not allow a user to impersonate another user or provide false identity information to gain access to or use the Services.

(b) Backups. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives.  RAPIDIOUS HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

(c) Trademark License. Customer hereby grants Rapidious a limited right to use any and all trademarks, logos, and branding materials of Customer as may be requested in providing the Services pursuant to this Agreement, subject to the prior written approval of Customer. Rapidious acknowledges that such Customer trademarks remain the proprietary property of Customer and that Rapidious shall have no right to use any such trademarks outside the scope of this Agreement.

5. OWNERSHIP; DATA.  

(a) Intellectual Property. Customer acknowledges and agrees that Rapidious shall own all right, title, and interest in, to, and under all intellectual property rights in the Service, and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Authorized Users relating to the Service (the “Feedback”), including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives, or improvements thereof. Customer shall assign and hereby assigns to Rapidious all right, title, and interest in, to, and under, and Rapidious is free to use, without any attribution of compensation to Customer, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback for any purpose whatsoever. Customer does not acquire any rights in the Services, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Rapidious. This Agreement is not a sale and does not convey any rights of ownership in or related to the Services to Customer.

(b) Customer Data. Customer shall own all its data, information, and materials provided by Customer and its Authorized Users to Rapidious (the “Customer Data”), and Customer shall be solely liable for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all such data, information, and materials. Customer Data includes any Customer-specific content created by Rapidious for Customer using data, information, or materials provided by Customer and its Authorized Users to Rapidious.  Customer hereby licenses to Rapidious the limited right to use or modify the Customer Data delivered by Customer to Rapidious solely for the purpose of permitting Rapidious to perform the Services requested by Customer hereunder including to compile statistical and performance information related to the provision and operation of the Services.

(c) Aggregated Data. Customer authorizes Rapidious to compile Aggregated Data, and such Aggregated Data shall be proprietary to Rapidious. To the extent necessary, Customer hereby assigns to Rapidious all right, title, and interest in, to, and under the Aggregated Data.  “Aggregated Data” means any non-personally identifiable, technical, statistical, or analytical data, gathered or generated directly by the Services or by use of the Service, that Rapidious collects, gathers, and aggregates periodically as part of its ordinary business operations. Aggregated Data is de-identified data that Rapidious (and its affiliates, licensors, and agents) may use on a non-attributed basis to monitor and improve its products and services, for benchmarking purposes, or to provide customized services or technologies to its Customers.  Rapidious collects and uses this data in accordance with applicable data protection laws.

6. FEES.

(a) Fees. During the Pilot Period, the Customer shall not pay license fees, subscription fees, or any other fees that are typically associated with the Services.  Rapidious shall provide Customer with prior notice of the termination of the Pilot Period. Upon the termination of the Pilot Period, if Customer determines to continue its use of the Services, Customer shall pay Rapidious all fees described in an order form or purchase order (an “Order Form”) in accordance with the terms therein (the “Fees”). Unless otherwise specified in an Order Form, all Fees are stated and solely payable in U.S. Dollars. All Fees are non-cancelable and non-refundable (except as otherwise expressly set forth in this Agreement), and are not subject to setoff. Customer is solely responsible for applicable state and local taxes, any bank fees, interest charges, finance charges, overdraft charges, and any other fees Customer incurs as a result of the charges billed by Rapidious.

(b) Payment. Unless otherwise specified in an Order Form, (i) Customer will be invoiced monthly in advance, and (ii) full payment is due thirty (30) days from the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. In the event that Customer fails to pay the full amount owed under an Order Form, Rapidious may limit Customer’s access to or cancel the Services, in addition to any other rights or remedies Rapidious may have pursuant to the terms of this Agreement. There are no refunds for any prepaid Fees.

(c) Payment Method. Rapidious accepts a variety of payment methods as specified in the invoice.

(d) Suspension. In the event of non-payment of any Fees or other fees payable hereunder, Rapidious may, in addition to any other rights and remedies it may have, suspend Customer’s and its Authorized Users’ access to the Services upon fifteen (15) calendar days’ notice.

(e) Fee Increase. If an Order Form renews, Rapidious may change the Fees applicable to a renewed term by providing Customer with at least 30 days’ written notice of the new fees before the end of the then-current term. If a Customer reengages Rapidious after providing notice of termination, Customer is subject to the then current fees, with no consideration for the prior Order Form(s).

7. TERM AND TERMINATION.

(a) Term of Agreement. This Agreement commences on the date that Customer or its Authorized Users begin using the Services and continues until the end of the Subscription Period (as defined below), unless otherwise terminated pursuant to the terms of this Agreement.

(b) Subscription Period. Customer’s subscription commences on the start date specified in the applicable Order Form and continues for the period identified on such Order Form (the “Subscription Period”), provided that if no period is identified in the Order Form, then the Subscription Period shall be month-to-month. Except as otherwise specified on the applicable Order Form, the Subscription Period shall automatically renew for successive periods, unless either party gives the other notice of non-renewal at least thirty (30) calendar days’ prior to termination of the current Subscription Period.  

(c) Termination for Breach. Either Party may terminate this Agreement and all Order Forms (including all Subscription Terms) if the other Party (i) fails to cure a material breach of this Agreement within fifteen (15) days after receipt of written notice, (ii) ceases operation without a successor or (iii) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within sixty (60) days.

(d) Termination for Convenience. Either party may terminate this Agreement at any time and for any reason upon thirty (30) days’ prior written notice to the other party, without further liability or penalty under this Agreement or any Order Form (“Termination for Convenience”). If Customers terminate less than thirty (30) days before their next renewal or bill date, Customers will be charged for the following payment cycle, which is non-refundable. Upon the termination of the Pilot Period, the Termination for Convenience shall terminate and the termination terms set forth in Section 7(b) shall apply.

(e) Effect of Termination. Upon suspension or termination of this Agreement, Rapidious shall acknowledge the cancellation via email, confirm the last day of service (“Cancellation Effective Date”), and charge for any remaining payments. Customers may rescind cancellation at any time prior to the Cancellation Effective Date at no penalty or Fee increase. Customers must pay all Fees and any other amounts due as of the Cancellation Effective Date.  Customers will have the time period set forth in Section 5(c) to request and/or remove any Customer Data that it or its Authorized Users provided through the Services. Following such period, Rapidious may destroy such Customer Data.

(f) Survival. Following termination or expiration of this Agreement, the following sections shall survive: Restrictions, Ownership and Data, Confidentiality, Fees, Limited Warranty, Limitation of Liability, Indemnification, Governing Law and Dispute Resolution, and any other terms which by their nature extend beyond the effective date of such termination.

8. CONFIDENTIALITY. Each party acknowledges that it will have access to certain confidential information of the other party, including the terms and conditions of this Agreement. “Confidential Information” includes all information identified by a party as confidential.  Each party’s Confidential Information shall (i) remain the sole property of that party and (ii) be used by the other party only as described herein and may not be disclosed, provided, or otherwise made available to any other third party except that such Confidential Information may be disclosed to the other party’s employees or agents who have a need to know in the scope of their work during the time they are performing services under this Agreement and are under the other party’s security and control. Confidential Information does not include (i) information that the recipient can establish was already known to the recipient at the time it was disclosed in connection with this Agreement, (ii) information that is developed independently by the recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential, (iii) information that becomes publicly known other than by a breach of this Agreement, or (iv) information disclosed in accordance with a valid court order or other valid legal process.  Each party agrees to hold the Confidential Information of the other party in strictest confidence and not to copy, reproduce, distribute, publish, or disclose such Confidential Information to any person except as expressly permitted by this Agreement.  

9. LIMITED WARRANTY.

(a) Rapidious represents and warrants to Customer that the Services will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. Customer’s exclusive remedy for breach of the foregoing limited warranty shall be for Rapidious to update and correct such Services not in compliance with such specifications and requirements, at no cost to Customer. The foregoing limited warranty shall not apply to performance issues or defects in the Services that result from factors outside Rapidious’s reasonable control, that resulted from any actions or inactions of Customer or its Authorized Users, or that resulted from Customer’s equipment or any third party equipment not within the control of Rapidious.

(b) Except as set forth in this Section 9, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, RAPIDIOUS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. RAPIDIOUS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE FREE OF HARMFUL CODE, SECURE, ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED, , OR ERROR FREE. RAPIDIOUS WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-RAPIDIOUS SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS). CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES OR SOFTWARE IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, ALL PILOT FEATURES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WITHOUT ANY PERFORMANCE OBLIGATIONS, AND RAPIDIOUS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FEATURES OFFERED DURING THE PILOT PERIOD.

10. LIMITATION OF LIABILITY. RAPIDIOUS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. RAPIDIOUS’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO RAPIDIOUS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT.  THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES.  THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.

11. INDEMNIFICATION.

(a) By Rapidious. Rapidious will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs arising out of any third party claim, action, suit, or demand (a “Claim”) against Customer to the extent such Claim alleges that Rapidious’s Services infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Rapidious have any obligations or liability under this section arising from: (i)  Customer’s failure to use updates or modifications to the Services that Rapidious makes available to Customer that would have helped avoid or mitigate the Claim; (ii) the combination, operation, or use of the Services with third-party equipment, devices, software, systems, or data, including non-Rapidious Services where the infringement would not have occurred but for such combination, (iii) use of the Rapidious’s Services by Customer or Authorized Users in violation of the Agreement.

(b) By Customer. Customer shall indemnify, defend, and hold Rapidious harmless from and against any and all liabilities, damages, and costs arising out of any Claim against Rapidious regarding Customer’s Confidential Information, Customer Data, or Customer’s use of the Services (or its Authorized Users) in violation of this Agreement.

(c) General. The Party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE RAPIDIOUS’S AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

12. GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement will be governed exclusively by the laws of the State of Delaware, without regard to its conflict of laws provisions. BY ENTERING INTO THESE TERMS, CUSTOMER AND RAPIDIOUS ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY.

13. ASSIGNMENT. Customer shall not assign this Agreement or its rights and obligations (including, without limitation, any assignment that occurs by operation of law) without the prior written consent of Rapidious.  Notwithstanding the forgoing, the rights and obligations of either party may be assigned in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such party.  Subject to the foregoing, this Agreement inures to the benefit of and shall be binding upon the parties and their respective successors and assigns.

14. ENTIRE AGREEMENT. The Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire agreement between the Parties related to this subject matter.

15. MODIFICATIONS. Rapidious may revise this Agreement from time to time and the most current version will always be posted on Rapidious’s website. If a revision, in Rapidious’s sole discretion, is material, Rapidious will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Rapidious’s blog or terms page, and Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within thirty days of receiving notice of the change.

16. CONFLICTS. In the event of any discrepancies between this Agreement and the Order Form, this Agreement shall prevail over the Order Form unless the Order Form specifically states that it is intended to prevail over the terms of this Agreement.

17. WAIVER; NOTICES. Waiver of a breach of this Agreement shall not constitute waiver of any subsequent default. Failure to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. All notices, requests, consents, claims, demands, waivers, or other communications (individually or collectively, “Notice”) given or made by Rapidious to Customer for any purpose shall be in writing and shall be deemed to have been given (i) when delivered by hand to the party to be notified; (ii) one business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, with verification of receipt, to the address set forth herein; (iii) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, to the address set forth herein; or (iv) when sent, if by means of electronic transmission (including by email or fax) in the manner permitted by applicable law, to the email address provided by the undersigned on the signature page to this Agreement (provided there has been no “bounceback” or other evidence the transmission was not received by the intended recipient), or such other address or email address as updated upon written notice by Customer to Rapidious from time to time.

18. RELATIONSHIP OF THE PARTIES. It is agreed that the relationship of the parties is that of independent contractors.  Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other.  Each party maintains its separate identity.