THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU," "YOUR," OR “CUSTOMER” SHALL REFER TO SUCH ENTITY. RAPIDBEE, INC. IS REFERRED TO HEREIN AS “RAPIDBEE”.
This Agreement is effective between You and RapidBee as of the date You execute this Agreement.
RapidBee will provide to Customer the services shown in the Service Order Form (“Services”) whichshall be subject to these TOS. The Service Order and this TOS constitutes the entire agreement betweenthe parties with respect to its subjectmatter (together they may be referred to as “Agreement” or “Service Orders”), superseding all priorwritten or oral negotiations or agreements. In case of conflict, the terms of the Service Order shall take precedence over this TOS.
You are responsible for all activity occurring under your account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of RAPIDBEE, including those related to data privacy, international communications and the transmission of technical or personal data. You must:
a. Immediately report to RapidBee any unauthorized use of any account or any other known or suspected breach of security known by you,
b. Not impersonate another RAPIDBEE user or provide false identity information to gain access to or use the RAPIDBEE Software.
Customer will pay all fees due for Services as invoiced from time to time by RapidBee according to the prices and terms listed in the Service Orders. Fees may only be altered by mutual written consent of the Parties.
RapidBee shall invoiceCustomer for the Services immediately following the Effective Date of eachTerm, and payment shall become due and payable upon Customer’s receipt of eachinvoice. Interest shall accrue at RapidBee’s sole and absolute discretion onlate payments at a rate equal to the lesser of
(i) one (1.0%) per month or
(ii) the maximum legalinterest rate chargeable per month.
Each party acknowledges that during the course of the parties’ relationship, it may be given access to or acquire information which is proprietary to or confidential to the other party, its affiliated companies, and any of their employees or clients. All such information obtained by a party (the “Receiving Party”) shall be deemed to be confidential and proprietary information. Each Receiving Party agrees to hold such Confidential Information (as defined below) in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than its performance under this Agreement. “Confidential Information” shall include any information that is marked or otherwise designated in writing as confidential at the time of disclosure or that a reasonable person would consider confidential based on the circumstances of the disclosure and the content of the disclosure, provided that Confidential Information shall not include any information that
(i) is or becomes known to the Receiving Party from a source that, to the receiving party’s reasonable knowledge, does not owe an obligation of confidentiality to the Disclosing Party;
(ii) is or becomes publicly known or otherwise ceases to be confidential, except through a breach of this Agreement by the Receiving Party;
(iii) is independently developed by the Receiving Party without reference to Confidential Information;
(iv) is in the Receiving Party’s possession prior to disclosure by the Disclosing Party, or
(v) is disclosed pursuant to a subpoena, order of court, or other operation of law. By way of example only, Confidential Information shall include any information relating to Customer’s employees, including but not limited to their names, home addresses, telephone numbers, skills, qualifications, evaluations, availability, record of assignments, and related information. In addition, this Agreement, including the fact of its existence, all business terms of the Service Order, and other documentation provided to Customer under this Service Order shall be deemed to be Confidential Information. a.
In addition to the confidentiality obligations set forth above, RapidBee will provide service levels as per exhibit B. It will employ data security measures in accordance with applicable laws and industry practice and RapidBee's data privacy and security policy, as available on RapidBee's website – https://www.RAPIDBEE.com/security.
RapidBee shall indemnify, defend and hold harmless Customer and its officers, directors, employees, agents, successors and assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee in connection with an action by a third party (other than an Affiliate of a Customer Indemnitee) arising out of or relating to any claims, actions, or demands alleging that the Services infringe any patent, trademark or copyright of any third party. The foregoing obligation does not apply to any other action or losses, including, but not limited to, those arising out of or relating to any:
(a) access to or use of the RAPIDBEE Software in combination with any hardware, system, software, network or other materials or service not provided or authorized in the specifications or otherwise inwriting by RapidBee;
(b) modification of the RAPIDBEE Software other than:
(i)by or on behalf of RapidBee; or
(ii) with RapidBee's written approval in accordance with RapidBee's written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of RapidBee;
(d) compliance with local, state and federal laws related to the processes supported by RapidBee’s software configuration under this Agreement;
Customer shall indemnify, defend and hold harmless RapidBee and its officers, directors, employees, agents, successors and assigns (each, a "RapidBee Indemnitee")from and against any and all Losses incurred by such RapidBee Indemnitee in connection with any Action by a third party (other than an Affiliate of a RapidBee Indemnitee) that arises out of or relates to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of RapidBee in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including RapidBee's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by RapidBee;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) gross negligence or more culpable act or omission(including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement. Notwithstanding the foregoing, Customer’s indemnification of RapidBee will not apply to any losses arising from RapidBee’s gross negligence, willful misconduct, or breach of this Agreement.
RAPIDBEE’S SERVICES MAY BE SUBJECT TO LIMITATIONS,DELAYS, DOWNTIME, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET,ELECTRONIC COMMUNICATIONS, AND THIRD-PARTY SERVER HOSTS WHICH WILL BE LOCATEDIN THE USA. RAPIDBEE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OROTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
RapidBee will use commercially reasonable efforts to
(a) schedule downtime for routine maintenance of the Hosted Services between the hours of 9 pm. and12 a.m. PST on weekends; and
(b) give Customer at least 24 hours prior notice of all scheduled outages of the Hosted Services ("Scheduled Downtime")
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OFANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHERECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS SERVICE,INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FORANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY,ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. IN NO EVENT SHALL ANY PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED 100% OF THE MAXIMUM CUMULATIVE AMOUNTPAYABLEBY CUSTOMER UNDER THE TERMS OF THIS AGREEMENT, INCLUSIVEOF ANY SERVICE ORDERS EXECUTED IN CONNECTION THEREWITH.
a. The Term of this Agreement shall be set forth in the Service Order and shall be incorporated into these TOS by reference.
b. Any renewalprovisions shall be set forth in the Service Orderand shall be incorporated into these TOS by reference.
c. During the Initial Term and any Renewal Term, this Agreement may not be terminated for convenience by Customer. Notwithstanding the foregoing clause, other than a termination for RapidBee’s breach, any attempt by Customer to terminate the Agreement during the initial Term or any Renewal Term shall result in Customer being immediately liable to pay RapidBee, as liquidated damages and not as a penalty, all fees due and payable to RapidBee during the current Term.
d.Either party may terminate this Agreement if
(a) a receiver is appointed for the other party or its property,
(b) the other party makes an assignment of all or substantially all of its assets for the benefit of its creditors,
(c) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor's relief law,
(d) the other party liquidates or dissolves or attempts to do so,
(e) the other party assigns or purports to assign the Service Order in breach of its provisionsor
(F) Either party's failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, labor difficulties, problems with telecommunications providers (a “force majeure event”), shall not be deemed a breach of this Agreement. In the event that RapidBee is not able to provide Services during a force majeure event, during this period Customer’s obligation to pay for the Services shall be suspended.
g. At the end of any term, the data that is stored in the Service is the Customers and is transferrable to you by direct download for up to 30 days after termination and then it will be permanently removed from the Service database.
CUSTOMER ACKNOWLEDGES THAT THE SERVICES PROVIDED BY RAPIDBEE ARE PROVIDED ON AN “AS IS” BASIS AND THAT, NOTWITHSTANDING ANY OTHER ORAL OR WRITTEN COMMUNICATIONS WITH RAPIDBEE ABOUT OR IN CONNECTION WITH ANY SUCH SERVICES, RAPIDBEE MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INTERRUPTION OR AVAILABILITY OF THE SERVICES, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
a. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given when delivered in person, when received by mail, postage prepaid, registered or certified mail, return receipt requested, or when received by an internationally recognized courier service, and proof of delivery received by the noticing Party. All notices to RapidBee or Customer shall be sent to the address indicated at the signature line.
b. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California, USA without regard to conflicts of law principles. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be restated to reflect as nearly as possible the original intent of the Parties and the remainder of the provisions shall remain in full force and effect.
c. The parties hereto irrevocably agree that any and all controversies, directly or indirectly related to this Agreement, will be submitted to final and binding arbitration before an arbitrator within the County of Santa Clara.
d. The prevailing party in any legal action or arbitration relating to this Agreement will be entitled to recover its attorneys' fees and litigation costs and expenses incurred in connection with such action or arbitration as part of the same proceeding.
e. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party hereto, except in the event of a party’s merger, acquisition, consolidation or sale of more than 50% of its business assets, any of which shall constitute grounds for a permissible assignment not requiring the other party’s consent.
f. No failure to pursue any remedy resulting from a breach of this Agreement by the non- breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.
g. The provisions contained in Sections 4 (Payments) (only to the extent that a payment obligation arising during the term of the Agreement has not been fully paid on or before termination of the Agreement), 5 (Proprietary Rights & Confidentiality), 6 (Indemnification by RapidBee), 7(Indemnification by Customer), 10 (Limitation of Liability), 11 (Term and Termination ) and 12 (Disclaimer) shall continue in force notwithstanding the termination of this Agreement.
h. Neither the course of conduct between the Parties nor trade practice shall act to modify any provision hereunder.
i. This Agreement and any addenda or order forms accepted hereunder constitute one and the same legally binding instrument and the entire agreement between Customer and RapidBee, and supersede all prior oral or written agreements between the Parties with respect to the matters provided for herein.
j. Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.
k. The parties agree that, to the extent permitted by law, the United Nations Convention on the International Sale of Goods, or similar consumer protection legislation worldwide, do not apply in any respect to the Agreement.
l. This Agreement does not create an employer-employee relationship between RapidBee and Customer, or any agency, joint venture or partnership. Neither party shall have the authority to act for or to bind the other party in any way, including to warrant or to execute agreements on behalf of the other party or to represent that the other party is in any way responsible for the acts or omissions of itself. Customer and RapidBee shall be independent contractors only.
1. Each week of the term of the Agreement, the Software shall be available at least 99.9% of the time between the hours of 7:00 a.m. and 3:00 a.m. Eastern Standard Time (“Access Performance”), excluding scheduled maintenance for installing 3rd party and commercial software patches and releases, updates of the Software, database changes, or proactively replacing any failing components, such scheduled maintenance (“Maintenance”) to be performed in cooperation with the vendors during non-business hours to the extent reasonably possible. In the event such Maintenance cannot be performed during non-business hours, Licensor shall notify on RAPIDBEE User Interface through alerts about upcoming maintenance 15 days in advance. Two or three times a year Licensor may undertake larger maintenance, during weekends non-business hours; such maintenance may take up to three (3) hours of down time and is necessary for Licensor’s disaster recovery program.
2. In the event of a failure of Licensor’s ability to provide the Access Performance set forth above the following service credits shall apply, based upon a percentage of the total charges paid by LICENSEE for the prior month service charges:
a) If actual access to the Software is less than 99.9%, but more than 95% as reported by the Outside Service, the service credit will be 10% of the fees paid by Licensor for the week in which the Access Performance was not met.
b) If actual access to the Software is less than 95% but more than 90% as reported by the Outside Service, the service credit will be 25% of the fees paid by Licensor for the week in which the Access Performance was not met.
c) If actual access to the Software is less than 90% as reported by the Outside Service, the service credit will be 100% of the fees paid by Licensor for the week in which the Access Performance was not met.
Outside Service availability data will be available on RAPIDBEE.com. Service credits will automatically be applied against outstanding payments.
3. Upon LICENSEE opening a Support Case by using Support Portal, Licensor agrees to acknowledge such request for support within the following timeframe of receiving the request from 9 a.m. to 9 p.m. Monday to Friday, Eastern Standard Time.