Terms and Conditions

RAPIDSCALE TERMS AND CONDITIONS

Last updated October 21st, 2025. Replaces all prior versions.

PLEASE READ THESE RAPIDSCALE TERMS CAREFULLY AS THEY, TOGETHER WITH THE SERVICE DOCUMENTS REFERENCED BELOW, CONSTITUTE A LEGALLY BINDING AGREEMENT THAT CONTAINS IMPORTANT INFORMATION REGARDING CUSTOMER’S LEGAL RIGHTS AND REMEDIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT RAPIDSCALE MAY CHANGE THESE RAPIDSCALE TERMS AT ANY TIME AS SET FORTH HEREIN.

Customer (and any purported representative of Customer) represents and warrants that it has the lawful authority to bind Customer to accept the RapidScale Terms, and that Customer (and any purported representative of Customer) has read, understood, acknowledged and agreed to be bound by these RapidScale Terms. The “RapidScale Terms” means the terms and conditions located at this URL (located at https://rapidscale.net/terms-and-conditions) including without limitation any terms and conditions contained in the other URLs contained in these terms and conditions.

SECTION A

GENERAL TERMS

The “General Terms” are set forth in this Section A of the RapidScale Terms.

GENERAL. By (i) using RapidScale’s and its affiliates, subsidiaries, parents, and related companies’ (“RapidScale”, “us”, “our”, “we”) websites, web portals, applications, software, products and services, including, but not limited to, those services and products identified in the applicable Service Documents (as hereinafter defined) (collectively, the “Service(s)”), or (ii) agreeing to the RapidScale Terms, Customer (as such or similar term is defined in the applicable Service Order) (“Customer”, or “you”) agree to be bound by the Agreement (as defined below). RapidScale and Customer may each be referred to herein as a “Party” or collectively, the “Parties”. The RapidScale Terms are part of, and shall be incorporated into, any agreement between Customer and RapidScale in which the RapidScale Terms are referenced (including, but not limited to, all signed and clicked-through agreements), and any document that describes the Services that Customer are purchasing or otherwise receiving from RapidScale (including, without limitation, a service order, service agreement, service attachment, change order, or purchase order, each being deemed a “Service Order”), statement of work (“SOW”), addendums, attachments, amendments, schedules, exhibits, service level agreements (“SLAs”) available at https://rapidscale.com/sla and any other documents that are expressly incorporated herein (each a “Service Document” and, collectively, the “Service Documents”) between Customer and RapidScale (together with these RapidScale Terms, the “Agreement”). For informational purposes, Logicworks Systems Corporation was acquired by an affiliate of RapidScale, Inc. in 2023. Accordingly, all references to “Logicworks” in the Agreement shall mean the applicable RapidScale affiliate (for example, Logicworks Systems Corporation, Logicworks Systems, LLC, LW Systems Canada, LLC, or other RapidScale affiliate, as applicable) or RapidScale, Inc.
ORDER OF PRECEDENCE. To the extent that a Service Document expressly references and modifies the RapidScale Terms, then the conflicting term of the Service Document will govern for the limited purposes set forth in the Service Document. To the extent the Third-Party Terms conflict with any other provision of the Agreement, such Third-Party Terms governs Customer’s use of the applicable Third-Party Resource (as defined in Section 8(g)) only. To the extent Marketplace Terms conflict with any other provision of the Agreement, such Marketplace Terms governs Customer’s use of the applicable Third-Party Marketplace (as defined in Section 3, below). Except as provided above in this Section 2, the order of precedence of the governing contract documents is as follows: (1) the RapidScale Terms; (2) the Third-Party Terms; (3) any URLs containing RapidScale policies, terms of use, or service levels; (4) the Service Order; (5) the SOW; and (6) any other applicable Service Document.
Services. From time to time, the Parties may enter into one or more Service Documents. Subject to and conditioned upon Customer’s compliance with the Agreement, for any mutually executed Service Order, RapidScale may provide to Customer, in accordance with the Agreement, (a) engineering, architecting, implementation, custom development, consulting, artificial intelligence, machine learning and other professional services (“Professional Services”), (b) assessment, design, deployment, virtualization, automation, cost optimization, support, monitoring, alerting, reporting, and remediation services for the purposes of managing a Customer’s Cloud Infrastructure (as defined in Section 8(h)) (“Managed Services”), and/or (c) support for and access to tools, scripts, software, resources, systems, infrastructure and other products, including through the resale of third-party products (“Subscription Services”), in each case, as described in and limited by each Service Order and/or SOW. Some RapidScale Services may be purchased by Customer through a private offering on a third-party marketplace (e.g., Google Cloud Marketplace, AWS Marketplace or Azure Marketplace) (each a “Third-Party Marketplace”). Where Customer purchases a Service through a Third-Party Marketplace, the purchase and use of the same shall, notwithstanding any terms to the contrary in such Third-Party Marketplace, be subject to the RapidScale Terms, regardless of whether the RapidScale Terms are included in the private offering on such Third-Party Marketplace. For clarity, by accepting these RapidScale Terms, Customer agrees that any purchase of Services by Customer will always be governed by the RapidScale Terms, in addition to any Third-Party Marketplace terms (“Marketplace Terms”).
Hardware. Unless otherwise expressly provided in a Service Document, RapidScale retains ownership of all hardware, for which RapidScale (i) delivers as part of a Service that is subject to a Service Term or (ii) maintains all associated warranties (“Leased Hardware”). At the end of the Service Term, the Leased Hardware must be returned by Customer to RapidScale. If Customer fails to return the Leased Hardware to RapidScale within thirty (30) days after the Service Terms ends, then Customer agrees to pay RapidScale the full retail price for the unreturned Leased Hardware which shall be due thirty (30) days from the date that an invoice for the same is dated. Customer will not receive support, management or updates for hardware purchased by Customer directly from RapidScale (“Purchased Hardware”). RapidScale will remove all references to Purchased Hardware from its internal system(s), including the RapidScale’s portal. All Purchased Hardware is sold as-is with no manufacturer warranties, and no applicable SLA or other support.
Support.
1. RapidScale’s support of a Customer environment is based on the “Support Tiers” set forth at: https://rapidscale.net/rapidscalesupportservicedescription. RapidScale may, in its discretion, change which Support Tier Customer falls under. Subject to the foregoing, RapidScale agrees to support the Services as set forth in the applicable Service Document or, in the absence of a Service Document, the applicable Responsibility Matrix. If Customer requires a change to a co-managed environment (“Environment Change”), such change must be (i) submitted to RapidScale through RapidScale’s ticketing system, (ii) made in accordance with RapidScale’s Responsibility Matrix and (iii) mutually agreed upon in writing by the Parties (“Change Control Process”). Any Environment Changes made outside of the Change Control Process by Customer may have an adverse impact on Customer’s Services and/or data. If (a) the exercise of the Change Control Process results in a change that deviates from RapidScale’s standard Services, or (b) the Change Control Process is not followed by Customer ((a) and (b) collectively a “Unsupported Change”), then RapidScale’s SLA’s will not apply. If an Unsupported Change results in a need for support, then RapidScale may provide such support in a commercially reasonable manner at the then current hourly professional service rates (unless otherwise agreed upon in a Service Document). Notwithstanding anything to the contrary in the Agreement, the Parties agree that in no event shall RapidScale be liable for any damages arising out of or relating to an Unsupported Change or any support of the same.
2. Unsupported Technologies. “Unsupported Technology” means technology (e.g., hardware or software, or a version thereof) where the hardware model or software version has reached the end-of-support date as set forth by the original equipment manufacturer (“OEM”) or publisher. RapidScale adopts the last available software and hardware hardening recommendations provided by the OEM or publisher, and minimum installation requirements and other restrictions may apply to any support RapidScale offers for Unsupported Technologies. In addition, any support provided by RapidScale for Unsupported Technology will be provided on a commercially reasonable basis only and limited to no more than (4) four hours per incident, with a maximum of (2) two incidents per month. Additional support hours may be purchased on a time and materials basis at RapidScale’s then-current rate unless otherwise agreed to in an applicable Service Order or SOW. Upon request, RapidScale may provide Customer a proposal for replacement hardware or software, including estimated installation, setup, and onboarding fees.
TERM AND TERMINATION.
1. 1. 1. Effective Date. The RapidScale Terms become effective on the earlier of (1) the date that any Service Order is fully executed by the Parties or (2) the date that Customer commences using any Service (the “Effective Date”) and shall continue until terminated in accordance with the RapidScale Terms (the “Term”). Prior to Services commencing, Customer may be required to complete a credit application. Upon approval of Customer’s credit application (if any), RapidScale will begin, as soon as practicable, the provisioning, installation, connection, billing and testing necessary to provide the Services. Billing for some or all Services may begin before full implementation of the Services. Billing may not be associated with the Effective Date. Customer acknowledges and agrees that RapidScale may have to perform certain service implementation activities for a period of time prior to a Service being made available to Customer (the “Preliminary Period”). The Preliminary Period for a Service will begin on the Effective Date or as set forth on an applicable Service Document, and will continue (i) until all Billing Milestones have been achieved as described in the Billing Milestone Matrix found at https://rapidscale.net/billingmilestoneaddendum for a given Service Order, (ii) until all RapidScale’s service implementation activities are completed for a given Service Order, (iii) five (5) days after RapidScale notifies Customer that certain actions are required to be performed by Customer and Customer does not perform such actions or (iv) as set forth on the Implementation Responsibility Matrix. When the Preliminary Period ends, full billing for the applicable Service Order shall commence (the “Full Billing Date”).
    2. Termination.
      1. Either Party may terminate the Agreement upon written notice to the other Party in the event that there are no active Service Orders. Unless otherwise provided in the Agreement, either Party may terminate the Agreement upon written notice if (i) such terminating Party provides the other Party with written notice of material breach of the Agreement, and (ii) such other Party fails to cure the breach within thirty (30) days of such notice of breach. If Customer terminates the Agreement after RapidScale’s material breach and failure to cure as set forth above, then Customer will be responsible for all charges for the period before the date of termination and for Services provided during Customer’s transition of Services from RapidScale.
      2. RapidScale may terminate the Agreement or any Service upon thirty (30) days’ prior written notice (which time frame may be less than thirty (30) days as RapidScale determines in good faith to be reasonably necessary or advisable in light of the relevant circumstance) prior to installation or in the event of a change in applicable laws, business circumstances, unavailability of any Service, or regulations that has a material adverse impact on RapidScale’s ability to provide a Service in a commercially reasonable manner.
      3. If RapidScale terminates the Agreement as a result of Customer’s material breach or Customer terminates the Agreement or any Services provided to Customer for any reason other than RapidScale’s material breach, Customer shall pay to RapidScale a “Termination Fee” as follows: (1) any (i) unpaid fees and any interest assessed thereon due by Customer for Services rendered by RapidScale under an applicable Service Document and (ii) non-cancellable Third-Party Resource fees that are outstanding and/or due by Customer for the remainder of the then-current SO Term, as applicable, (2) the retail rate for non-recurring Services provided through the date of termination during an initial Service Term, even if those charges had been initially waived or discounted to Customer, and (3) one hundred percent (100%) of the monthly recurring charge (“MRC”) set forth in the applicable Service Order multiplied by the remaining months of the then-current SO Term, if applicable. If any Managed Services are terminated pursuant to this Section 6(b)(C), the MRC for such Managed Services shall be calculated as the six (6) month trailing average of all monthly recurring fees for such Managed Services as identified on the past six (6) months of invoices (excluding non-cancellable Third-Party Resource fees). The Agreement shall be deemed to survive termination or expiration for any SO Term that continues beyond the Term of the Agreement, and the terms and conditions in the Agreement shall govern the provision of Services under such Service Orders and/or any other Service Document. After expiration or termination of the Term of the Agreement, Customer shall not be authorized to purchase additional Services under the Agreement. If Customer has purchased a Third-Party Resource, then as soon as possible before any termination of the Agreement, Customer shall notify RapidScale as to whether Customer would like to retain the use of any such Third-Party Resource, it being understood that Customer’s failure to timely notify RapidScale of its intent will be deemed to be an election by Customer to deactivate all Third-Party Resources upon termination. For the avoidance of doubt, each Third-Party Resource may be discontinued unless Customer makes appropriate arrangements directly with the applicable third-party provider consistent with any Third-Party Terms.
      4. Effect of Termination on Customer Content. Upon termination of the Agreement, Customer agrees that RapidScale may delete all Customer Content (including, without limitation, personal information, transactional records, and any other data provided or generated during the course of the Agreement), from RapidScale’s internal systems, private cloud systems or accounts that are held by RapidScale as part of RapidScale’s provision of a Third-Party Resource that has not arranged for transfer to Customer prior to the termination of this Agreement or within a reasonable timeframe thereafter, but no later than thirty (30) days from the date of termination of this Agreement. Notwithstanding the foregoing, RapidScale may retain certain data where required by law, regulation, or legitimate business purposes, provided that such data is kept confidential and is not used for any purpose other than compliance with such legal obligations or legitimate business purpose. For the avoidance of doubt, Customer’s failure to provide RapidScale with instructions on where and how to transfer Customer Content within thirty (30) days of termination of this Agreement will result in Customer Content being deemed abandoned by RapidScale. Customer agrees that RapidScale is not responsible and is hereby relieved of all liability with respect to Customer Content that is deleted in accordance with this paragraph.
    3. Termination Fees. The Parties agree that the Termination Fee (i) constitutes liquidated damages (ii) is not a penalty and (iii) represents a fair, reasonable, and appropriate estimate of RapidScale’s damages. If a particular Service is terminated by Customer without cause or by RapidScale for cause, and RapidScale advises Customer in writing that in RapidScale’s good faith judgment that a provision of a related Service is impractical or impossible (“Related Service”) as a result of such termination, then the Related Service shall be deemed terminated for cause by RapidScale and any applicable Termination Fees will apply to the same.
    4. Suspension. RapidScale may suspend or otherwise restrict access to any Service or terminate the Agreement: (i) upon five (5) days’ prior notice in the event of any payment default, if such default is not cured within that period; (ii) immediately in the event of any violation of the Agreement (including, without limitation, the applicable acceptable use policy (“AUP”) as identified at https://rapidscale.net/acceptable-use-policy, which is incorporated herein by reference) by Customer or any of its members, end users, agents, customers or any other third parties (collectively, “Users”) who (1) utilize or access the Services provided hereunder, or (2) attempt to use the Services beyond the scope of the rights granted or for a purpose not authorized, including access that could reasonably be suspected to be fraudulent, misleading or unlawful activities; (iii) immediately in the event Customer does not cooperate in good faith with a reasonable investigation by RapidScale of a suspected data breach or a violation of the Agreement; (iv) immediately in the event that RapidScale reasonably believes Customer’s use of the Services violates applicable law, is likely to cause loss or liability to RapidScale, or RapidScale is otherwise required to suspend Customer’s access by a law enforcement agency or court order; (v) immediately in the event that there is an attack on a Third-Party Resource, a security incident occurs or an event occurs that RapidScale reasonably believes poses a threat to the integrity or security of the Cloud Infrastructure; (vi) immediately in the event that RapidScale believes Customer or any of Customer’s User’s use of the Services could adversely impact the Services, other customers or their end users’ use of the Services, or the RapidScale network or servers used to provide the Services; or (vii) immediately in the event that there is suspected unauthorized third-party access to the Services. RapidScale may lift any such suspension when the circumstances giving rise to the suspension have been resolved. At Customer’s request, unless prohibited by applicable law, RapidScale will notify Customer of the basis for the suspension. Any such suspension will be for the duration and to the extent that RapidScale determines, in its sole discretion, is reasonable under the circumstances in order to address the underlying circumstances. RapidScale may continue to invoice Customer for any applicable fees and charges during a suspension and require Customer to pay a reinstatement fee before Services are restored. The restoration of any Service suspended, decommissioned or otherwise interrupted may require a rebuild fee or Professional Services, as reasonably determined by RapidScale. RapidScale shall have no liability for any damage or other consequences that may result from a suspension.
    5. Service Term. The provisions of this Section 6(e) shall only apply where an applicable Service Order does not provide otherwise (i.e., where a Service Order does not specify when a Service Term or Service Renewal Term (as defined below) commences and ends). Subject to Section 6(b), the term of any Service Order shall begin on earlier of (i) the conclusion of the Preliminary Period or (ii) the Full Billing Date and continues for the period specified in the Service Order, or if not specified in the Service Order, thirty-six (36) months (the “Service Term”). The Service Term will automatically renew for successive periods equal to the Service Term (each an “Service Renewal Term”), unless, prior to the expiration of the then-current Service Term, either Party provides, upon not less than ninety (90) days, written notice of non-renewal to the other party. If the then-current Service Term is not renewed (automatically or otherwise), then RapidScale shall have no duty or obligation to provide the Services to Customer after the expiration of the Service Term unless RapidScale explicitly agrees in writing. RapidScale may in RapidScale’s sole discretion, but shall not be obligated to, provide the Services to Customer, on a month-to-month basis, after the expiration of the then-current Service Term for a period of not more than ninety (90) days (the “Month-to-Month Period”), provided that Customer requests a continuation of the Services no later than thirty (30) days prior to the end of the then-current Service Term. During the Month-to-Month Period, Customer may, in RapidScale’s sole discretion, be charged the sum of one hundred fifty percent (150%) of the MRC set forth in the applicable Service Order for each thirty (30) day period. In RapidScale’s discretion, RapidScale may require Customer to pay a one (1) month deposit at the inception of the Month-to-Month Period. Either Party may terminate a Month-to-Month Period upon thirty (30) days prior written notice. For the avoidance of doubt, the RapidScale Terms and any applicable Service Documents apply to Services provided during a Month-to-Month Period. The “SO Term” begins on the Effective Date and includes the Preliminary Period, the Service Term, and any Service Renewal Term(s).
BILLING & PAYMENT.
1. 1. 1. Billing. Customer will remit payment directly to RapidScale in accordance with the terms of the applicable Service Order. Except as otherwise may be set forth on a Service Document or on an invoice, all amounts due under the Agreement must be paid within thirty (30) days of when the invoice is dated (“Due Date”). Notwithstanding the foregoing, unless (a) otherwise set forth in a Service Document or (b) there is a delay in implementation or the commencement of Professional Services that is solely due to RapidScale, one-time fees are due thirty (30) days following the execution of a Service Order. Invoices will be sent by RapidScale in accordance with the applicable Service Document. In addition to any charges for Services, Customer shall also pay any third-party charges (e.g., installation, tariffs, taxes, Third-Party Resource fees, local access, regulatory charges, carrier charges, utilities, etc.) applicable to the Service(s) as well as any increases thereto, as they are incurred. Notwithstanding the Full Billing Date, Customer acknowledges and agrees that it is responsible for paying for all fees associated with any partially implemented Services during the Preliminary Period. Customer shall be responsible for all sales, use, withholding, goods and services, value added and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity (or any international governmental entity, as applicable) on any amounts payable by Customer hereunder, as well as any increases thereto, provided that Customer shall not pay or be responsible for any taxes imposed on, or regarding, RapidScale’s income, revenues, gross receipts, personnel, or real or personal property or other assets. RapidScale may, upon ten (10) days prior notice, modify the payment terms or require a mutually acceptable form of security (e.g., a deposit) if Customer has repeatedly failed to pay its invoices by the Due Date or if there has been a material adverse change in Customer’s financial condition. Notwithstanding any other provision to the contrary in the Agreement, RapidScale may increase the charges applicable to any Service at any time to cover any unforeseen third-party rate increases, and if an increase is not due to unforeseen third-party rate increases, RapidScale may increase the charges applicable to the Services but not more than once per calendar year, provided that, if the Services are in a Service Renewal Term, then RapidScale may increase any charges at any time for any reason. An increase shall be effective upon the date set forth in RapidScale’s written notice thereof to Customer. All prices set forth in a Service Order are in U.S. Dollars and are estimates based on information that Customer provided to RapidScale. Unless otherwise mutually agreed upon between the parties, Customer is responsible for all travel and living expenses that are reasonably necessary for RapidScale to provide the Services. Professional Service hours are consumed and billed as set forth in the applicable Service Document. If Customer exceeds the number of Professional Service hours allocated under an applicable Service Order ( “Overage”), then Customer will, unless otherwise set forth in a Service Document, be invoiced for such Overages at the same hourly rate that was originally contracted for.
    2. Payment. Unless otherwise provided in the Agreement, all fees are nonrefundable and all invoices are due in full and payable by the Due Date and become past due after the Due Date. If Customer claims exemption from any taxes assessed on Professional Services or Managed Services, Customer shall provide RapidScale with sufficient supporting documentation. If Customer has a bona fide dispute with any of the amounts on the invoice (“Disputed Amount”), Customer shall pay all amounts not in dispute by the Due Date and provide RapidScale with a written request for a billing adjustment, together with all supporting documentation, within thirty (30) calendar days after the invoice date or Customer’s right to any billing adjustment shall be irrevocably waived. If RapidScale agrees to adjust all or a portion of the Disputed Amount, Customer will not be obligated to pay a late payment charge on the adjusted amount. If Customer fails to pay all non-Disputed Amount charges on RapidScale’s invoice by the Due Date, RapidScale may impose a late payment charge of 1.5% per month or the maximum rate allowed by law, whichever is less, on the unpaid balance until the amount is paid in full. In accordance with Section 6(d), RapidScale may also suspend Customer’s Services until all delinquent amounts, including late payment charges, are paid in full. An additional charge will apply to each returned check. For clarity, Customer is obligated to pay all applicable invoices without any requirement for RapidScale to provide a purchase order number on the invoices (or otherwise).
    3. Payment Authorization.To satisfy its obligations on unpaid invoices, Customer may, upon execution of the Agreement, be required to provide RapidScale’s accounting team with credit card or bank account information (“Account Info”). Customer hereby authorizes its bank and credit card company to pay RapidScale any balances that are due on unpaid invoices (the “Authorization”). For credit card charges and automatic clearinghouse (“ACH”) debits to Customer’s bank account, Customer understands, agrees, and authorizes RapidScale to withdraw, charge, deduct or cause the electronic payment of any unpaid invoices on or about the fifteenth (15) of the month (“Automatic Payment Date”). In the case of any transaction that is rejected for non-sufficient funds or otherwise fails for any reason (a “Payment Failure”), Customer agrees that (i) it shall immediately update the Account Info and the updated Account Info will be subject to the Authorization and (ii) RapidScale may at its discretion attempt to process the charge again by any method authorized. Customer understands and agrees that a return item charge and other fees, including third-party collection fees, may be assessed for each Payment Failure. Customer will not dispute any transactions with Customer’s bank or credit card RapidScale so long as each transaction corresponds to a valid invoice. The Authorization shall remain in effect at all times during the Term and for sixty (60) days thereafter and Customer shall promptly notify RapidScale of any change to the Account Info with not less than fifteen days’ notice prior to the effective date of any change. No Payment Failure or other event will excuse Customer’s obligation to pay all amounts due under each invoice as directed by RapidScale.
    4. Automatic Payments. Unless otherwise provided in the Agreement, any account with an MRC of less than one thousand dollars ($1,000.00) will be set up for automated payments via credit card authorization form or ACH payment. For each transaction, in addition to the charge Customer has authorized, Customer’s credit card issuer and network may assess their customary transaction or handling charge, if any. If a charge is declined or reversed by the credit card issuer or network, Customer agrees to pay RapidScale a reasonable service charge and to reimburse RapidScale for all reasonable costs of collection. If Customer chooses to pay by ACH payment, Customer authorizes RapidScale or its designated agent to initiate ACH transfer entries and to credit and/or debit the account identified herein for provision of the Services or any charge associated with the Agreement. This authorization shall remain in effect unless and until RapidScale has received written notification from Customer that this authorization has been terminated in such time and manner to allow RapidScale to act.
    5. Affiliate Billing and Collection. Customer acknowledges that certain services may be provided by RapidScale’s affiliates under separate agreements between Customer and such affiliate(s). Customer authorizes RapidScale to invoice and collect payment on behalf of its affiliates for services provided to Customer. RapidScale may consolidate charges for services provided by RapidScale and its affiliates into a single invoice for administrative convenience. Payment to RapidScale in accordance with such invoice shall satisfy Customer’s corresponding payment obligations to the applicable affiliate. In issuing such invoices, RapidScale acts solely as billing and collection agent for its affiliates and assumes no additional liability for affiliate-provided services beyond RapidScale’s express obligations under this Agreement.
CUSTOMER OBLIGATIONS.
1. 1. 1. Use of Services. As an express condition of the provision of the Services, Customer and Customer’s Users agree to comply with the Agreement and the AUP. Customer is responsible and liable for Customer’s Users and shall ensure all Users comply with the Agreement, including the AUP and the restrictions in 5(b) below. As between the Parties, Customer is responsible for responding to all third-party requests concerning Customer’s use, and Customer’s Users’ use, of the Services. Customer is responsible for all activity that occurs via Customer’s account. If Customer becomes aware of any unauthorized use of the Services, Customer’s account and/or passwords, Customer will notify RapidScale immediately.
    2. Restrictions. Customer will not, and will not allow third parties to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, benchmark, or otherwise attempt to extract any or all of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for high-risk activities where a failure could result in death, serious injury, environmental damage, property damage or other material harm (e.g., medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments, etc.); (c) sublicense, resell, lend, distribute or otherwise make available any or all of the Services, unless RapidScale expressly agrees otherwise in a written amendment to this Agreement signed by both parties (and RapidScale may revoke permission to allow resale at any time upon notice to Customer); (d) use the Services for the benefit of any person other than as expressly permitted, whether for timesharing, service bureau, or other purposes; (e) access the Services in a manner intended to avoid incurring fees or exceed usage limits or quotas; (f) remove or alter any product identification or proprietary-rights notices, legends or symbols from any Services or documentation; (g) process or store any data or content that is subject to the International Traffic in Arms Regulations maintained by the Department of State; (h) use the Services in a manner not consistent with the documentation, (i) disclose to any third party the performance measures of the Services or benchmark tests or other comparisons of the Services with other services or software; (j) access the Services for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes; or (k) otherwise use any Service except as expressly provided in the Agreement.
    3. Export Controls. Customer warrants and covenants that Customer will not possess, use, import, access, export, re-export, or resell (and shall not permit the possession, use, importation, access, exportation, or resale of) the Services or Cloud Infrastructure, or any portion thereof, in violation of any applicable sanctions and export control laws, rules, or regulations of any jurisdiction. Customer shall comply with all applicable import, export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions programs administered and enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (collectively, “Trade Control Laws“). This includes Customer’s responsibility to secure and pay for any export licenses or other U.S. Federal Government authorization as may be necessary in connection with Customer’s use, possession, export, re-export, or access of the Services.
    4. Government Rights. Customer shall not permit the Services to be used by or on behalf of the U.S. Federal Government without RapidScale’s prior written consent. To the extent RapidScale provides consent for the Services to be used by or on behalf of the U.S. Federal Government, they are provided solely as “commercial items,” “commercial computer software,” and/or “commercial computer software documentation” as those terms are defined in the Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition Regulation Supplement (“DFARS”). Further the Services are provided or licensed to the Government with only the rights provided for in the Agreement.
    5. Responsibility for Content and Data. Customer is solely responsible (i) for Customer’s applications, content, and data that Customer or any User(s) makes available on, uses, shares and/or processes through RapidScale’s Services, and (ii) for making sure Customer’s applications, content and data comply with the Agreement and the AUP. Furthermore, Customer is solely responsible for properly handling and processing notices that are sent to Customer regarding Customer’s data or content, such as by any person claiming that Customer’s data or content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act or access requests under applicable privacy laws. Customer will ensure that Customer’s data, and the use of Customer’s content and data in connection with the Services by Customer and Users, will not violate any applicable law. Customer will obtain and maintain any required consents necessary to permit the processing, storage and use of such content and data under the Agreement by the Services. Customer represents, warrants and covenants that such content and data will not infringe on, or contain any content or data that infringes on, or otherwise violates any copyright, patent, privacy or any other right held by a third party and that such content and/or data will not violate any applicable law, rule, regulation, or industry standard. Customer further acknowledges and agrees that Customer is solely responsible for configuring and maintaining appropriate encryption for any data that Customer transmits or processes through the Services. RapidScale does not monitor, and makes no representations regarding, the sufficiency of the encryption technologies implemented by Customer. Customer shall take the actions and implement the measures that are required for it to comply with each Privacy Law applicable to its business. If electronic protected health information (“ePHI” as defined in 45 C.F.R. § 160.103) will be (a) transmitted (b) processed, (c) stored or (d) maintained by or through the Services, then the Business Associate Agreement located at https://rapidscale.net/rapidscale-business-associate-agreement applies. If personally identifiable information (“PII”) will be processed through the Services, then the Data Protection Agreement located at https://rapidscale.net/rapidscale-data-processing-agreement applies.
    6. Access Controls. Customer is responsible for identifying and authenticating all Users, for approving access by such Users to any Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information by Users. Customer shall implement appropriate technical and organizational security measures that are reasonable for its use of the Cloud Infrastructure, including, without limitation, secure access controls, logging, log review, intrusion detection, intrusion management and written policies and procedures, as commensurate with the requirements and industry standards of its business. Customer shall employ physical, administrative and technical controls, screening and security safeguards necessary to securely administer, distribute and safeguard access credentials and protect against any unauthorized access. Customer is responsible for all activities that occur under Customer’s usernames, passwords or accounts and Customer agrees to notify RapidScale immediately of any unauthorized use.
    7. Third-Party Products, Services and Tools. Certain Services are provided to Customer via third parties (each a “Third-Party Resource”) and may be subject to separate third-party terms and conditions (“Third-Party Terms”). To the extent the Third-Party Terms conflict with any other provision of the Agreement, such Third-Party Terms governs Customer’s use of the applicable Third-Party Resource only. The Third-Party Terms applicable to Customer’s use of certain Services are set forth on the Third-Party Terms web page that is available at the following web address, which Third-Party Terms are incorporated herein by reference: https://rapidscale.net/third-party-terms-and-conditions. Customer acknowledges and agrees that RapidScale may use certain third-party software tools for purposes of performing some of RapidScale’s internal business processes (“Third-Party Tools”). RapidScale may allow such Third-Party Tools to access the Cloud Infrastructure, using a policy of least privilege, for the sole purpose of facilitating RapidScale’s provision of the Services and the performance of RapidScale’s internal business processes, subject to the following condition: upon termination of RapidScale’s use of such Third-Party Tools or upon termination of the Agreement, RapidScale will ensure that all access to the Cloud Infrastructure by such Third-Party Tools promptly ceases. To the extent Customer is able to opt out of RapidScale’s use of such Third-Party Tools, it is understood that Customer’s decision to do so may impact pricing and availability of the Services.
    8. RapidScale Access. Customer grants to RapidScale the right to use, access, process, and transmit, in accordance with the Agreement, Customer’s content (“Customer Content”) and Customer’s computing environment (including, without limitation, the virtual computing resources that Customer uses such as, servers, software components, networking components, storage components, bandwidth connections and Third-Party Resources) (collectively, the “Cloud Infrastructure”) for the purpose of delivering the Services. If Customer Content contains applications and third-party programs, then Customer agrees that RapidScale may allow providers of those third-party programs to access the Cloud Infrastructure and Customer Content as required for the interoperation of such applications and third-party programs with any Services. Additionally, RapidScale may, as part of its internal operations, take point-in-time snapshots of, or back up certain Customer systems and/or data on a periodic basis (“Operational Backups”). These Operational Backups are made on a snap-shot basis and capture only the information that exists on RapidScale’s internal systems at the time of the backup. Operational Backups are typically performed in relation to maintenance activities and are not provided as part of the Services that are delivered to Customer. RapidScale does not guarantee the availability or integrity of the Operational Backups, and RapidScale may destroy Operational Backups at any time. Operational Backups are not available to Customer or, if available, may not be useful to Customer outside of the RapidScale environment.
    9. Cooperation. The parties agree to cooperate to facilitate the performance of the Agreement. Customer shall give RapidScale true, accurate, current and complete information when establishing and using any Service. Customer shall use reasonable efforts to cause its Users to cooperate with RapidScale in matters relating to any Service. Customer shall provide RapidScale in a timely manner all permissions and access reasonably necessary for the provision of the Services, including, without limitation, Global Delegated Admin Privileges (GDAP) in Microsoft Partner Center for Microsoft Managed Services where Microsoft 365, Dynamics 365 and/or Azure Resources that are provided by RapidScale. The minimum level of access is defined per service and is subject to modification at any time upon request by RapidScale. Customer will retain sole responsibility for: (i) Customer’s operation of and control over the use of the Cloud Infrastructure, including by any User, (ii) all instructions, directions and materials provided by or on behalf of Customer relating to the Services or the Cloud Infrastructure and (iii) the approval and implementation of any recommendations made by RapidScale and the results therefrom. Customer shall provide RapidScale with a properly licensed software environment within which to provide any Services and RapidScale’ performance of the Services is contingent upon Customer’s timely performance of its responsibilities. Notwithstanding anything to the contrary in the Agreement, RapidScale will continue to invoice Customer as provided in the Agreement (including any overages) regardless of whether access is granted to affected systems, services and / or data.
    10. Unresponsive Customer.Customer agrees that its active cooperation, participation, and engagement with RapidScale is essential to the successful implementation and delivery of the Services. Failure of Customer to comply with all obligations under this Agreement, including but not limited to participation in scheduled implementation activities and status meetings results in the unnecessary consumption of RapidScale’s resources, including without limitation, personnel time, scheduling capacity and project management efforts (“Disruption”). Customer agrees that Disruptions cause delays and results in inefficiencies in RapidScale’s business operations which ultimately increase RapidScale’s costs and diminishes RapidScale’s ability to allocate resources to projects and complete Services in a timely manner. In recognition of the foregoing, Customer agrees that its failure (i) to attend three (3) consecutive project meetings without notification to RapidScale or delegation to a Customer project team member, (ii) to attend five (5) project meetings throughout the project lifecycle without notification to RapidScale or delegation to Customer project team member, (iii) to respond to three (3) or more calls or emails within a three (3) week period and RapidScale has not received a communication from Customer within one (1) week of the communication from a RapidScale project manager; or (iv) to comply with any explicit obligation under this Agreement, shall, upon written notice from RapidScale, result in Customer being deemed an “Unresponsive Customer”. An Unresponsive Customer may, reengage RapidScale if it does so within the time specified in RapidScale’s notice and, as a condition precedent to RapidScale recommencing Services, pays a “Reengagement Fee” for the Disruption equal to the greater of (a) ten percent (10%) of the total one-time fees set forth in the applicable Service Order, (b) one (1) month of the total recurring fees set forth in an applicable Service Order, or (c) two thousand five hundred dollars ($2,500). Notwithstanding anything to the contrary, RapidScale may terminate this Agreement for cause where an Unresponsive Customer (x) does not reengage with RapidScale within the time specified in the notice or (y) reengages with RapidScale but does not pay the Reengagement Fee within an amount of time determined by RapidScale in its sole discretion. A termination of this Agreement pursuant to this clause shall result in a Termination Fee in accordance with Section 6(b)(C).
    11. Marketplace Purchases. Customer acknowledges that certain services may be purchased, provisioned, or activated directly through a public cloud provider or marketplace (including, without limitation, AWS, Azure, Google Cloud, or similar platforms) (“Marketplace”). RapidScale may not receive notice of, or have visibility into, such Marketplace transactions and may not review or be aware of the specific third-party terms in effect at the time of activation or purchase. Accordingly, Customer is solely responsible for determining, reviewing, accepting, and complying with all applicable third-party and Marketplace terms. For example, use of Anthropic services acquired from a Marketplace (including via Amazon Bedrock) is governed by Anthropic’s commercial terms, available at https://www.anthropic.com/legal/commercial-terms, as updated from time to time. RapidScale makes no representation or warranty regarding such third-party services or terms and shall have no liability arising from (i) Customer’s acceptance of or compliance with third-party terms, (ii) changes to such terms, or (iii) any act, omission, suspension, modification, or output of the applicable third-party provider or cloud platform. By accessing or using third-party services through a Marketplace, Customer agrees to comply with the applicable third-party terms, policies, and all applicable laws.
SPECIAL TERMSa) Updates to the Services. RapidScale may modify, update, or discontinue the Services (including any portions or features) at any time, without liability to Customer or anyone else. However, for changes to paid Services, RapidScale will make commercially reasonable efforts to notify Customer of the modification, update, or discontinuation in advance if such modification, update, or discontinuation is expected to result in a material deterioration (i.e., reduction) in the Services. If RapidScale discontinues the Services in their entirety, RapidScale will also allow Customer a reasonable time to download Customer’s data and content, and RapidScale may provide Customer with a pro rata refund for any unused fees for any Service(s) that Customer prepaid.b) Solutions Architect Services.From time to time, RapidScale’s solutions architects may, pursuant to an applicable Service Order, provide Customer with advice or recommendations relating to cloud infrastructure, architectural design, cost modeling, optimization, security, compliance, or related matters (“Solutions Architect Services”). Customer acknowledges and agrees that: (i) Solutions Architect Services are provided solely for advisory and informational purposes to assist Customer in its evaluation and use of cloud services and related technologies, (ii) Solutions Architect Services do not constitute, and are not a substitute for, independent audits, security assessments, penetration testing, compliance certifications, or other professional services performed by qualified third parties, (iii) Customer remains solely responsible for: (a) evaluating the adequacy, accuracy, and applicability of any Solutions Architect Services to its particular use case, regulatory environment, and business needs; (b) making all final design, configuration, and implementation decisions regarding its cloud environment; and (c) ensuring ongoing compliance with applicable laws, regulations, standards, and industry best practices.
WARRANTIES/DISCLAIMER.
1. General Warranties. Each Party represents and warrants that (a) it has the authority to enter into the Agreement and grant the rights set forth in the Agreement; (b) the Agreement is a legal, valid and binding obligation of the Party and is enforceable against such Party in accordance with its terms; (c) in connection with its performance of the Agreement, such Party shall comply with all applicable laws; and (d) such Party is qualified to do business in the jurisdiction(s) in which it operates under the Agreement and will take such actions from time to time as necessary to maintain such qualification.
2. Disclaimer of Warranties. THE SERVICES AND ANY RELATED EQUIPMENT, SOFTWARE, THIRD-PARTY RESOURCES AND OTHER MATERIALS PROVIDED BY RAPIDSCALE IN CONNECTION WITH THE SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (A) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED HEREFROM; (B) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) WARRANTY OR REPRESENTATION THAT THE SERVICES OR THIRD PARTY SERVICES WILL BE FREE OF HARMFUL COMPONENTS, AND (D) WARRANTY OR REPRESENTATION THAT ANY CONTENT, INCLUDING CUSTOMER DATA, WILL BE SECURE OR NOT OTHERWISE DAMAGED OR LOST. RAPIDSCALE MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM OR THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF ANY THIRD-PARTY TECHNOLOGY OR SERVICES, ANY THIRD-PARTY ACTION SUCH AS HACKING, OR ANY ACT OR OMISSION OF CUSTOMER, INCLUDING FAILURE TO ENCRYPT, AND RAPIDSCALE SHALL HAVE NO RESPONSIBILITY THEREFORE. CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP CUSTOMER’S DATA AND CONTENT. NEITHER RAPIDSCALE NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
3. No Third-Party Warranty. Customer acknowledges that RapidScale does not control the transfer of data over telecommunications facilities, including the Internet, and that Internet accessibility carries with it the risk that Customers privacy, confidential information, and property may be lost or compromised. RapidScale makes no representation or warranty whatsoever regarding any Third-Party Resource. Customer acknowledges that its use of any Third-Party Resource is pursuant to the applicable Third-Party Terms. As such, neither RapidScale nor its subcontractors or suppliers warrant that any Third-Party Resource will be provided uninterrupted, error-free, completely secure, or that all defects will be corrected. Customer accepts all warranty limitations set forth in any Third-Party Terms and agrees that all disclaimers, limitations and restrictions set forth in any Third-Party Terms are integrated herein. Customer is responsible for all activities that result from a User’s use of any Third-Party Resources. Except for the limited rights and licenses expressly granted under the Agreement and the Third-Party Terms, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any User any intellectual property rights or other right, title, or interest in or to any Third-Party Resource.
4. No Legal or Technical Opinion Related to Services. Service Provider does not provide, and nothing in this Agreement shall be construed as providing, legal advice, legal opinions, or compliance determinations with respect to any data privacy, trans-border data flow, or data protection laws and regulations (“Privacy Laws”). Service Provider’s sole obligation is to perform the Services as expressly described in an applicable Service Order. Customer is solely responsible for determining its own compliance obligations under applicable Privacy Laws and for selecting, designating on the Service Order, and properly utilizing the Services to meet such obligations. The Services, including any technical and organizational measures provided by Service Provider, are not a substitute for Customer’s independent assessment, determination, and deployment of additional safeguards required to address Customer’s unique business, regulatory, and compliance requirements. To the extent any compliance requirement is not identified in a Service Order, Customer represents and warrants that it will independently implement all safeguards and measures necessary to satisfy its compliance framework. Subject Sections 10 and 11 of the General terms, except to the extent Service Provider fails to perform a technical or organizational measure that is expressly committed to in a Service Order, Service Provider shall have no liability arising out of or relating to Customer’s compliance with Privacy Laws, including any failure by Customer to implement or maintain appropriate technical or organizational measures.
5. Disclaimer for Customer Control. Customer is solely responsible for determining whether the Services meet its legal, security, capacity, performance, backup, disaster recovery and scalability needs. Customer is responsible for requesting upgrades and modifications, including those required to address a spike or change in system resource utilization, a change in processing requirements or storage requirements; software deprecation; or a change in any laws or regulations applicable to Customer’s business. RapidScale is not responsible for any area of the Cloud Infrastructure controlled exclusively by Customer or for any harm caused by any Users who were able to gain access to Cloud Infrastructure because Customer’s usernames, passwords or accounts were compromised or not terminated on a timely basis. RapidScale is not responsible for any act or omission that conforms to the instructions of Customer, it being understood that if RapidScale has knowledge that such instructions will have a materially adverse impact on the provision of Services, RapidScale may so advise Customer of the same. RapidScale is not responsible for the impact or results of Customer Content selected by Customer and Users. Customer is responsible for deploying appropriate technical and organizational measures that are reasonable for its use of the Cloud Infrastructure. Customer will immediately notify RapidScale of any unauthorized use or access.
LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROHIBITED BY LAW, THE PARTIES AGREE TO THE FOLLOWING LIMITATIONS ON LIABILITY:
1. 1. General Exclusions. RAPIDSCALE SHALL HAVE NO LIABILITY FOR ANY LOSS, DAMAGE OR EXPENSE ARISING FROM CUSTOMER’S RELIANCE ON INFORMATION, INSTRUCTIONS OR DIRECTIONS PROVIDED BY CUSTOMER. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL RAPIDSCALE OR ITS SUBCONTRACTORS OR SUPPLIERS, OR THEIR RESPECTIVE AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR MALWARE IN ANY CLOUD INFRASTRUCTURE, TRANSMISSION FACILITIES OR EQUIPMENT, OR FOR ANY UNAUTHORIZED ACCESS TO CUSTOMER’S CLOUD INFRASTRUCTURE, DATA FILES, OR PROGRAMS UNLESS CAUSED DIRECTLY BY AN INTENTIONAL ACT OF MISCONDUCT OF A RAPIDSCALE EMPLOYEE IN VIOLATION OF APPLICABLE LAW AS DEMONSTRATED BY AN INDEPENDENT FORENSICS EXPERT. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL RAPIDSCALE OR ITS SUBCONTRACTORS OR SUPPLIERS, OR THEIR RESPECTIVE AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST DATA, LOST BUSINESS, BUSINESS INTERRUPTION, LOST REVENUES, DAMAGE TO GOODWILL, DAMAGE TO REPUTATION, LOST OPPORTUNITIES, COMPLIANCE FAILURES, SECURITY INCIDENTS OR LOSS OF INFRASTRUCTURE, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE EXCLUSIONS IN THIS SECTION 11(a) SHALL NOT APPLY TO ANY CLAIM TO THE EXTENT SUCH EXCLUSION IS NOT ALLOWED BY APPLICABLE LAW.
  2. Third-Party Exclusions. IN CONNECTION WITH THE USE, DELIVERY OR MANAGING OF ANY THIRD-PARTY RESOURCE, IN NO EVENT WILL RAPIDSCALE BE LIABLE WHEN RELYING UPON A THIRD-PARTY RESOURCE FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE, (b) IMPAIRMENT, INTERRUPTION OR DELAY OF ANY CLOUD INFRASTRUCTURE, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (d) MALWARE, ERROR, BUGS OR VULNERABILITIES, OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR OTHERWISE FORESEEABLE, IN EACH CASE, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND OTHERWISE. ANY LIMITATIONS OF LIABILITY FROM ANY THIRD-PARTY TERMS ARE HEREBY INCORPORATED INTO THE AGREEMENT. RAPIDSCALE SHALL HAVE NO LIABILITY UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY FAILURE OF ANY FEATURE OF ANY THIRD-PARTY RESOURCE.
  3. Cap. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF RAPIDSCALE AND ITS SUBCONTRACTORS AND SUPPLIERS, AND ANY OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, AGENTS AND REPRESENTATIVES, TO CUSTOMER OR ANY USER UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO THE AGREEMENT, ANY SERVICES, THE USE OF THE CLOUD INFRASTRUCTURE, OR ANY ACT OR OMISSION RELATING THERETO EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO RAPIDSCALE FOR THE SERVICES (EXCLUDING ANY THIRD-PARTY FEES) DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO CUSTOMER’S CLAIM(S) OCCURRED. IN ALL INSTANCES WHERE CREDITS ARE OFFERED OR AVAILABLE, SUCH CREDITS ARE THE SOLE FINANCIAL REMEDY FOR A BREACH OF THE AGREEMENT BY RAPIDSCALE. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT RAPIDSCALE HAS AGREED TO THE PRICING AND ENTERED INTO THE AGREEMENT, IN PART IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN RAPIDSCALE AND CUSTOMER AND CONTRIBUTE TO THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
CONFIDENTIALITY.
1. 1. General. Neither Party shall, without the prior written consent of the other Party, use or disclose the Confidential Information of the other Party during the Term of the Agreement and for two (2) years following the expiration or termination hereof. As used herein, “Confidential Information” shall mean any non-public information owned or duly licensed by a Party relating to its respective business activities, products, services, financial affairs, technology, marketing, or sales plans disclosed related to the Agreement, and received by the other Party pursuant to the Agreement, including, but is not limited to, the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving Party, (ii) is received by the receiving Party from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving Party without use of the Confidential Information. Each Party will take all reasonable precautions to protect the other Party’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Notwithstanding the foregoing, a Party may disclose Confidential Information: (a) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and are contractually and/or legally subject to a duty of confidentiality, or (b) pursuant to legal process; provided that the disclosing Party shall, unless legally prohibited, provide the non-disclosing Party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure.
  2. Due Diligence Package. Notwithstanding anything to the contrary, Customer may share RapidScale’s ‘Customer Due Diligence Package’ (a document which RapidScale may provide to facilitate Customer’s assessment of RapidScale’s information security, privacy, risk management, and compliance) with (i) Customer’s auditors and legal representatives that are under a duty to keep such information confidential, (ii) third parties that makes use of or accesses the Services through Customer (each an “End Customer”), and (iii) End Customer’s auditors or legal representatives that are under a duty to keep such information confidential, provided that (a) any such disclosure shall be for the sole and exclusive purpose of and to the extent necessary for Customer, End Customer or their respective auditors or legal representatives to verify RapidScale’s information security measures, privacy policy, risk management, and compliance in anticipation or the continuation of receiving the Services as a Customer or as an End Customer, (b) any such disclosure will not be to a competitor of RapidScale, (c) End Customer executes a non-disclosure agreement with Customer with terms that are at least as commensurate with the confidentiality terms set forth in this Section 12 and the Customer Due Diligence Package is included within the scope of such non-disclosure agreement, and (d) Customer remains primarily responsible to RapidScale for any unauthorized disclosure of the Customer Due Diligence Package by End Customer.
  3. Return and Relief. On the disclosing Party’s written request or upon expiration or termination of the Agreement for any reason, the receiving Party shall promptly return or destroy, at the disclosing Party’s option, all originals and copies of all documents and materials it has received containing or referencing the disclosing Party’s Confidential Information. Each Party acknowledges and agrees that, due to the unique nature of Confidential Information, there may be no adequate remedy at law for any breach of its obligations hereunder, and therefore, upon any breach or any threat thereof, each Party may be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity, subject to the terms hereof. Neither Party shall have to return or destroy any Confidential Information that resides on such Party’s system electronically as part of standard disaster recovery procedures, provided that the duty of confidentiality shall remain in effect for as long as such information resides on such Party’s systems. Notwithstanding the foregoing, to the extent permitted by law, RapidScale may withhold the return or transfer of any of Customer’s Confidential Information until Customer has remitted all outstanding fees to RapidScale.
OWNERSHIP.
1. 1. Ownership. Except as expressly set forth in the Agreement, the Agreement does not grant either Party any rights, implied or otherwise, to the other Party’s content or any of the other Party’s intellectual property or trade secrets. As between the Parties, Customer owns all rights, title and interest in Customer’s data and content, and RapidScale owns all rights, title, and interest in the Services.
  2. RapidScale Ownership of Developed Solution. RapidScale may, from time-to-time, develop unique, proprietary solutions based on problems which are specific to Customer’s needs (“Developed Solution”). Where such Developed Solution (i) does not misappropriate Customer’s intellectual property and (ii) does not integrate Customer’s Confidential Information, RapidScale shall own all right, title, and interest to the Developed Solution even though the same may be developed as a result of access to Customer’s Confidential Information and intellectual property.
  3. Customer Ownership of Deliverables. For any work-product first created specifically for Customer as set forth on a written SOW and as expressly identified in such SOW as an owned deliverable resulting from Professional Services (each, a “Deliverable”), RapidScale acknowledges and agrees that upon payment of all fees due pursuant to the Agreement, each Deliverable shall constitute a “work made for hire” for Customer within the meaning of the Copyright Act of 1976, as amended, and shall be Customer’s exclusive property, except with respect to any Preexisting Material (as defined below) which is hereby excluded. If any Deliverable is not deemed a “work made for hire” by operation of law or otherwise, then upon payment of all fees due hereunder, RapidScale shall grant to Customer a license to use such Deliverable for the limited purpose which is set forth in the applicable Service Order or SOW.
  4. Grant of License. Subject to the limitations expressly enumerated by any Service Order or SOW, if any Preexisting Material is intentionally delivered to Customer as part of a Deliverable, then upon payment of all fees due hereunder, RapidScale shall grant to Customer a perpetual, limited, non-exclusive, non-transferable right to use the Preexisting Material in connection with such Deliverable only for the limited purposes set forth in the applicable Service Order or SOW.
  5. Retention of Preexisting Material. Except as expressly set forth in Section 13(d) above, the Agreement does not convey to Customer any right or license to use, sell, exploit, copy or further develop RapidScale’ intellectual property or any of its Preexisting Material. Notwithstanding anything to the contrary, Customer shall not own (a) RapidScale’ proprietary methodologies, concepts, work approaches, know-how and techniques, (b) RapidScale’s proprietary computer programs, software, scripts, code, tools and products, (c) RapidScale’s templates, flowcharts, designs, specifications, drawings, sketches, models, samples, records and documentation, (d) RapidScale’s patents, copyrights, trademarks, service marks, ideas, insights and trade secrets, and (e) any derivatives, improvements, extensions or enhancements to any of the foregoing (collectively, the “Preexisting Material”). All Preexisting Materials and RapidScale’s administrative communications, records, files and working papers relating to any Services shall remain the exclusive property of RapidScale, along with the residual intangible information that is used in connection with providing any Services.
  6. Feedback. If Customer provides RapidScale feedback and suggestions about the Services, then Customer hereby grants RapidScale an irrevocable, perpetual, sublicensable right and license to fully exploit and use that feedback and suggestions for any purpose whatsoever, including, but not limited to, incorporation into the Services and/or the creation of derivative works.
INDEMNIFICATION.
1. 1. From Customer. Customer will indemnify, defend, and hold RapidScale, its affiliates, licensors, subcontractors, service providers and suppliers, and each of their employees, agents, representatives, shareholders, officers, directors, successors and assigns (collectively, the “RapidScale Indemnitees”) harmless from any and all third party claims, judgments, losses, damages, penalties, fines, demands, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, or liabilities (“Third-Party Claim”) arising from or related to Customer’s use or resale of the Services, including, without limitation, (i) any breach of the Agreement or the AUP by Customer or Customer’s Users; (ii) the content and data processed via the Services and provided by Customer and Customer’s Users; (iii) actual or alleged infringement or misappropriation of any third party’s intellectual property or trade secret right by data, content or materials provided by Customer or Customer’s agents to RapidScale or uploaded to the Services; (iv) unauthorized access to RapidScale’s systems to the extent caused by an act or omission of Customer, Customer’s Users or personnel resulting in damage to, impairment of, disablement of any hardware, software, or data of RapidScale; (v) a claim that any of Customer’s personnel is a RapidScale employee and not Customer’s employee or an independent contractor, including: any claim that RapidScale is required to pay taxes or employee benefits on behalf of any of Customer’s personnel and any claim, lawsuit, or proceeding brought against RapidScale by any of Customer’s personnel alleging an employer-employee relationship between the plaintiff and RapidScale; (vi) any misuse of the Services; and (vii) grossly negligent or willful acts or omissions by Customer or Customer’s agents.
  2. From RapidScale. RapidScale shall indemnify, defend and hold harmless Customer and its officers and employees (collectively, the “Customer Indemnitees”) from and against any Third-Party Claim (other than those brought by a Customer Indemnitee or User) that a Service supplied by RapidScale to Customer infringes or misappropriates any patent, copyright or trade secret of the third party bringing such Third-Party Claim. Notwithstanding anything to the contrary herein, RapidScale will have no liability under this Section to Customer if the infringement claim arises from and would not have occurred but for any of the following: (i) combination or integration of the Service(s), or any deliverable, with equipment, devices or software not delivered by RapidScale; (ii) any modification by parties other than RapidScale; (iii) use of the Service in a manner inconsistent with designs, specifications or directions provided to Customer, in breach of the Agreement, or in violation of law; or (iv) Customer’s failure to timely implement any modifications, upgrades, patches, fixes, replacements, or enhancements made available or otherwise identified to Customer to the extent that the claim would have been avoided otherwise.
  3. Indemnification Procedure. The indemnified Party shall promptly notify the indemnifying Party of any claim with respect to which it seeks indemnity under this Section. The following terms apply to the indemnification obligations set forth above: (i) counsel shall be selected by the indemnifying Party; (ii) the indemnified Party shall have the right to approve any settlement, which approval will not be unreasonably withheld; and (iii) the indemnifying Party shall reimburse the indemnified Party for all reasonable fees and expenses incurred in (1) responding to any initial proceedings or demands in connection with the claim or (2) assisting in the defense of the claim at indemnifying Party’s request. An indemnifying Party shall have no obligation for any claim under this Section if the indemnified Party fails to promptly notify the indemnifying Party of such claim as provided above, but only to the extent that the defense of such claim is materially prejudiced by such failure.
PUBLICITY. Neither Party shall use, publicize, or issue any press release which includes the name, trademarks, or other propriety identifying symbol of the other Party or its affiliates without the prior written consent of such other Party, provided that RapidScale may include Customer’s name in a list of RapidScale’s customers that RapidScale may provide on a confidential basis to RapidScale’s potential customers.
JURY WAIVER. In the event of litigation, each Party expressly waives its right to have its claims or defenses heard by a jury.
FORCE MAJEURE. Neither Party will be held liable for any failure or delay in its performance under the Agreement (other than a failure to comply with payment obligations) due to a Force Majeure Event. “Force Majeure Event” means an event beyond a Party’s reasonable control, including but not limited to, acts of war, invasion, hostilities, acts of God, earthquake, flood or extreme weather conditions, embargo, riot, explosion, sabotage, terrorist threats or acts, government order, law, or actions, embargo or blockades, national emergency, quarantine conditions, pandemic, shortage of adequate power or facilities, and other similar events. If a Force Majeure Event prevents RapidScale’s provision of Service(s) to Customer for a period of thirty (30) consecutive days, either Party may terminate the affected Service(s) by providing thirty (30) days written notice to the other Party. Notwithstanding the foregoing, in no case shall a Force Majeure Event relieve Customer’s obligations to pay any amounts when due. The Party seeking to excuse its own performance under this Section 17 shall use commercially reasonable efforts to give prompt written notice to the other Party of the relevant Force Majeure Event.
NOTICES. Notices under the Agreement shall be in writing and delivered to the persons or offices of the parties stated herein. A written notification by RapidScale may include, without limitation, electronic notice and/or notice via an invoice, billing insert or other billing communication sent to Customer. For any notices from Customer hereunder to be valid, it must be in writing and sent postage prepaid by certified or registered mail, return receipt requested, or by overnight carrier (e.g., FedEx), recipient signature required, to the intended recipient at such recipient’s address as set forth herein. The date of delivery (or attempted delivery, if delivery is refused) shall be deemed to constitute the date of such notice. A Party may change its address for delivery of notices hereunder by providing notice of such change of address to the other Party in accordance with the provisions of this Section. Notices to Customer will be valid if sent to one or more of the mailing or email addresses listed on the applicable Service Order or on file with RapidScale as applicable. Invoices may be emailed as a .pdf attachment. Notices to RapidScale will be valid if sent to the addresses listed on the applicable Service Order, with a copy to: RapidScale, 6205-B Peachtree Dunwoody Road, Atlanta, Georgia 30328, Attn: Vice-President, Commercial Business Unit, Legal Department.
MAINTENANCE. Customer may purchase certain Services that include maintenance and repair by RapidScale. For such Services, Customer will cooperate in a timely manner and provide access and assistance as necessary to allow such maintenance or repair. If RapidScale determines that immediate maintenance is required (“Emergency Maintenance”), then RapidScale may, but is not obligated to, perform such Emergency Maintenance at any time, as needed, and without prior notice, provided that RapidScale will use commercially reasonable efforts to notify Customer of any such Emergency Maintenance as soon as is reasonably practical to do so after the Emergency Maintenance is completed. Customer agrees that RapidScale may support Customer remotely through monitoring, software or access logins which may contain technological measures designed to collect and transmit to RapidScale certain diagnostic, technical, usage, and related information.
SECURITY. RapidScale shall use reasonable security practices consistent with industry standards at any data centers that RapidScale owns or operates. Under the Agreement, RapidScale is a data processor and not a data controller (i.e., Customer are the data controller).
GOVERNING LAW AND VENUE. The Parties agree that any term, provision, duty, right, obligations, cause of action, right of action or claim between the Parties shall be governed by the laws of the State of Georgia, without giving effect to any choice or conflict of law provisions. The Federal or state courts situated in Fulton County, Georgia have exclusive jurisdiction over the resolution of all disputes that arise under the Agreement, and each Party irrevocably submits to the personal jurisdiction of such courts. The Parties expressly agree to exclude: (i) the application of the United Nations Convention on Contracts for the International Sale of Goods (the “Convention”) to the Agreement and the performance of the Parties contemplated herein, to the extent that such Convention might otherwise be applicable; and (ii) the Uniform Computer Information Transactions Act (as it may be adopted, titled, and amended from time to time). Nothing in the Agreement will limit either Party’s ability to seek equitable relief.
COMPLIANCE; INDEPENDENT CONTRACTOR. Each Party agrees to comply with all applicable laws and regulations with respect to their rights and obligations under the Agreement. Without limiting the foregoing, Customer shall take the actions and implement the measures that are required for it to comply with each Privacy Law applicable to its business. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
SEVERABILITY/UNENFORCEABILITY. If any provision(s) of the Agreement are found to be invalid, illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced, and such provision(s) shall be deemed modified to the extent necessary to render such provision(s) enforceable and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreement of the Parties set out in the Agreement.
ASSIGNMENT. Customer may not assign or otherwise transfer Customer’s rights or obligations (or any portion(s) of them) under the Agreement or delegate Customer’s obligations (or any portion(s) of them) to pay amounts Customer owe RapidScale in relation to Customer’s use of the Services without RapidScale’s prior written consent. Customer also may not assign or delegate any claims, rights of action, causes of actions or claims held by Customer against RapidScale without RapidScale’s prior written consent. Any attempt to assign or delegate will be void and of no effect. RapidScale may assign any or all of RapidScale’s rights and obligations (or any portion(s) of them) under the Agreement at any time without Customer’s consent. Any person or entity to which RapidScale assigns the Agreement or any right(s) or obligations under it shall be entitled to all such of RapidScale’s rights or obligations so assigned. RapidScale may subcontract any portion of the Services.
WAIVER. The waiver or modification by RapidScale of any term or condition hereof shall not void, waive, or modify any other term or condition. The failure by RapidScale to insist, in any one or more instances, upon the performance of any term of the Agreement shall not be construed as a waiver or relinquishment of such right to such performance or to future performance of such item. A waiver granted on one occasion shall not constitute a waiver of any future occasion. RapidScale can delay enforcing any of RapidScale’s rights under the Agreement without losing them.
ENTIRE AGREEMENT. The Agreement (including, but not limited to, all signed and clicked-through agreements and any other Service Documents), contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, agreements (including those in a non-disclosure agreement which, for the avoidance of doubt, only apply to preliminary discussions), commitments or understandings related hereto, if any, are hereby superseded by the terms of the Agreement. The terms located at a URL referenced in the Agreement are incorporated by reference into the Agreement. RapidScale may provide an updated URL in place of any URL in the Agreement.
SURVIVAL. Any and all provisions in the Agreement which would reasonably be expected to be performed after the termination or expiration of the Agreement shall survive and be enforceable after such termination or expiration, including, without limitation, provisions relating to confidentiality, ownership, disclaimers, indemnification, limitations of liability, effects of termination, jurisdiction and governing law.
CHANNEL PARTNERS. RapidScale partners with third parties to generate customer referrals (“Channel Partners”). Where a Channel Partner has referred Customer to RapidScale and such referral results in Customer executing a Service Document with RapidScale, then RapidScale shall be permitted to disclose such Service Document to the Channel Partner for the limited purpose of verifying (i) the existence of a contract between Customer and RapidScale and (ii) the pricing details of the contract between Customer and RapidScale. In the alternative, RapidScale permits Customer to provide the Channel Partner with a copy of the Service Document.
CHANGES/AMENDMENTS TO THE AGREEMENT. No amendment to the Agreement will be effective unless it is in writing and signed by the Parties. Notwithstanding the foregoing, (i) Third-Party Terms may be updated at any time, with or without notice, by the applicable Third-Party Resource or RapidScale (“Third-Party Revisions”), and (ii) RapidScale may make updates to the Agreement at any time that are generally applicable to all RapidScale customers that are bound by these RapidScale Terms (“Revisions”), which shall become effective on the earlier of (a) thirty (30) days after notice is delivered to Customer or (b) the start of any Service Renewal Term or the execution of any new Service Order (the earlier of (a) or (b) being the “Opt-Out Period”) unless Customer opt out as described below. Customer understands and agrees that any change to the scope, time-table or staffing of any Professional Services engagement may increase the fees that are due pursuant to a Service Order. Customer may opt out of the Revisions by providing written notice to RapidScale via email at optout@rapidscale.net, stating that Customer are opting out of the Revisions. Customer’s written notification to RapidScale must include Customer’s company/entity name, address and account number, the name and position of the person submitting the notification on behalf of Customer, as well as a clear statement of which Revisions Customer is opting out of. Customer must submit Customer’s written notice opting out of the Revisions within the Opt-Out Period, or Customer shall be deemed to accept the Revisions. Further, Customer’s continued use and/or payment for Services after the thirty (30) day Opt-Out Period shall also be deemed acceptance of all Revisions. If Customer opt out of any Revisions, RapidScale may (i) immediately terminate the Agreement or affected Service without penalty or liability to Customer, or (ii) provide notice to Customer that the opted-out Revisions will not apply to Customer and the Agreement will then continue under the most recent contract terms for the then-current term. Until RapidScale provides notice of its election of option (i) or (ii) in the preceding sentence, the Agreement shall continue under its most recent contract terms excluding any Revisions properly opted out by Customer. This paragraph states Customer’s sole and exclusive remedy for any Revisions. Notwithstanding anything to the contrary in the Agreement, RapidScale may make Revisions that it deems are minor or concern products or services which are not currently under contract with Customer, and such updates shall be deemed effective after the update is posted online, with or without actual notice to Customer.
Feedback. Customer acknowledges and agrees that any “Feedback” (i.e., any information, suggestions, ideas, enhancement requests, recommendations, comments and other feedback that Customer or any Customer representative may disclose, transmit, suggest or offer to the RapidScale or its Affiliates) that Customer provides to RapidScale (including any of RapidScale’s representatives) is submitted without any restrictions or expectations of confidentiality. As such, Customer (on behalf of itself and its Representatives) hereby permits RapidScale to use, to allow others to use, or to assign the right to use, without compensation, restriction or further obligation of any kind, any Feedback for any purpose whatsoever, including publication or the creation of any intellectual property or derivative works of or relating to any Feedback.
Service List. RapidScale offers the Services listed below. Customer agrees that RapidScale may update its Service offerings from time-to-time.
1. A list of Professional Services can be found at https://rapidscale.net/matrixprofessionalservices all of which are subject to the RapidScale Terms.
2. A list of Core Services can be found at https://rapidscale.net/matrixcoreservices all of which are subject to the General Terms and the Core Service Terms set forth in Section B.A list of Cloud Services can be found at https://rapidscale.net/matrixcloudservices all of which are subject to the General Terms and the Cloud Service Terms set forth in Section C.
Global Service Delivery. RapidScale may, in its sole discretion, utilize domestic and international personnel, affiliates, and subcontractors to deliver the Services, including but not limited to remote monitoring and management (RMM), help desk, NOC/SOC operations, maintenance, and incident response, in support of Customer’s environment, including for purposes of providing continuous (24x7x365) coverage. RapidScale shall remain fully responsible for the performance of all Services and shall ensure that all such personnel are subject to confidentiality, data protection, and information security obligations consistent with this Agreement and industry-standard practices. Notwithstanding anything to the contrary in this Agreement, any Statement of Work (“SOW”), or other prior agreement between the parties, including any provision requiring that Services be performed exclusively by United States-based personnel, such provisions are hereby amended and superseded in their entirety by this clause, which shall control in the event of any conflict, and all other terms shall remain in full force and effect.
Migration of Customer Environment. Customer acknowledges that RapidScale may, from time to time and in the ordinary course of its operations, migrate Customer’s hosted environment, systems, applications, and data (collectively, the “Customer Environment”) from the data center facilities and infrastructure on which they are currently operated to other facilities or infrastructure utilized by RapidScale for the delivery of the Services. RapidScale shall have the right to perform such migration at its discretion and at RapidScale’s expense. RapidScale will coordinate with Customer in good faith to plan and execute any such migration in a manner intended to minimize disruption to Customer’s operations. RapidScale will provide Customer with reasonable advance notice of any planned migration and will work collaboratively with Customer to establish an implementation plan, including scheduling migration activities during mutually agreed maintenance windows where reasonably practicable. RapidScale shall use commercially reasonable efforts to ensure continuity of the Services and to limit any interruption to the shortest duration reasonably necessary to complete the migration. Customer agrees to reasonably cooperate with RapidScale in connection with such migration activities, including providing access, information, and approvals reasonably required to complete the migration. Temporary interruptions reasonably required to complete the migration, and communicated in advance where practicable, shall not constitute a failure to provide the Services or a breach of this Agreement.
Transition and Service Validation Period. Following the commencement of Services and RapidScale’s assumption of operational responsibility for Customer’s environment (the “Transition Period”), RapidScale will undertake activities to assess, document, stabilize, and validate the Customer Environment, including inherited infrastructure, configurations, applications, dependencies, and operational workflows. The purpose of the Transition Period is to allow RapidScale to gain operational familiarity with the Customer Environment and to identify any conditions that may affect the delivery of the Services. During the Transition Period, the Service Level Agreements (“SLAs”) set forth in this Agreement or any applicable Service Order shall not apply. RapidScale will use commercially reasonable efforts to provide the Services in a professional and workmanlike manner during such period, but SLA service levels, credits, or related remedies shall not commence until RapidScale has completed validation of the Customer Environment and provides written notice to Customer that the Services have entered steady-state operations (the “Service Validation Date”). RapidScale will work in good faith with Customer during the Transition Period to identify operational risks, undocumented configurations, unsupported components, or other environmental conditions that may impact service performance. Customer agrees to reasonably cooperate with RapidScale and provide access, documentation, and assistance reasonably necessary to support RapidScale’s validation activities. The Transition Period will continue until the earlier of (i) RapidScale’s confirmation that the Customer Environment has been sufficiently validated for steady-state service delivery, or (ii) a mutually agreed date following completion of any required remediation or migration activities.

SECTION B

CORE SERVICE TERMS

In addition to the General Terms, the terms in this Section B (the “Core Service Terms”) shall apply to any Core Services. These Core Service Terms shall apply until termination of the applicable Services in accordance with the RapidScale Terms. “Core Services” means Services delivered to customers leveraging hosted physical and virtual infrastructure in a customer owned or shared datacenter environment (which could be referred to, e.g., as Infrastructure-as-a-Service, Managed Infrastructure, or private cloud), including those listed in Section A, Paragraph 31.b. and any other Service that are not Cloud Services and are provided to Customer by RapidScale. Any term not otherwise defined in the Core Service Terms has the definition set forth in the General Terms.

Installation. The installation process and terms specific thereto for any specified Core Services shall be pursuant to an SOW or Service Document to be mutually agreed to in writing between RapidScale and Customer or, in the absence of an SOW for a particular service, or a Service Document that includes a mutually agreed upon installation process, implementation is deemed to be standard and defined per RapidScale’s applicable Implementation Responsibility Matrix (included in the Responsibility Matrices) available at https://view-su2.highspot.com/viewer/64949ce3219dfdc934b60e1f (the “Implementation Responsibility Matrix”). If the actual scope of services required for implementation exceeds the scope set forth in the SOW or Implementation Responsibility Matrix, as applicable, then RapidScale will charge Customer for time and materials at RapidScale’s then-current rate unless otherwise agreed to in an applicable Service Order or SOW.
Additional Core Service Payment Terms. With the exception of RapidScale Hosted Compute, Storage, Memory, LTE Backup, and 5G Backup, usage-based charges are billable at a separate rate from MRCs not to exceed 125% of the applicable MRC rate. RapidScale Hosted Compute, Storage, Memory, LTE Backup, and 5G Backup will each be subject to separate rates for overages.
Implementation. RapidScale agrees to implement the Services as outlined in a separate Service Document on a per service basis or, in the absence of a Service Document for a particular service, implementation is deemed to be standard and defined per the Implementation Responsibility Matrix. If the actual scope of services required for implementation exceeds the scope set forth in the applicable Service Document or Implementation Responsibility Matrix, as applicable, then RapidScale will charge Customer for time and materials at RapidScale’s then-current rate unless otherwise agreed to in an applicable Service Order or SOW.
RapidScale Privacy Policy for Core Services. Use of the Core Service(s) is subject to RapidScale’s privacy policy, which is posted at https://rapidscale.net/privacy-policy and is incorporated into the RapidScale Terms by reference.
Designated Partner of Record. For Microsoft Managed Services where Microsoft 365, Dynamics 365 and/or Azure Resources are provided by RapidScale (“MMS”), Customer are required to assign RapidScale as the Designated Partner of Record (DPOR) for Customer’s Microsoft tenant.
Managed Security Services/Managed Detection and Response Services (“Security Services”).
1. If Customer purchase Security Services from RapidScale, the terms of this Section 7 apply. To the extent they conflict with any other provisions of the Agreement, the terms of this Section 7 will govern as to the Security Services only.
2. The Security Services offered by RapidScale hereunder are provided by Proficio, Inc. (“Proficio“) and are subject to the additional terms and conditions located at: https://www.proficio.com/terms-of-use/. In the event that RapidScale’s agreement with Proficio ends, RapidScale may, at its option, (a) make commercially reasonable efforts to provide substantially similar Security Services from another provider; or (b) terminate the Security Services upon no less than ninety (90) days’ prior written notice to Customer, unless such notice is not reasonably practicable under the circumstances, in which case RapidScale will provide as much notice as practicable.
3. The respective responsibilities of Customer and RapidScale are set forth in the responsibility matrices available at: https://view-su2.highspot.com/viewer/64949ce3219dfdc934b60e1f (the “Responsibility Matrices”). Customer understands and agrees that (a) Customer is responsible for performing the responsibilities allocated to Customer in the responsibility matrix; (b) Customer is solely responsible for establishing and maintaining a comprehensive information security program and for establishing, maintaining, updating and enforcing Customer’s security policies; (c) the Security Services serve as one component of a comprehensive information security program and RapidScale does not assume responsibility for managing such a program or for making strategic, tactical or policy decisions relating to Customer’s comprehensive information security program; (d) RapidScale does not act in the capacity of an insurer and Customer remain responsible for securing appropriate cyber-liability and similar insurance coverage suitable to Customer’s business; and (e) while the Security Services are designed to detect potentially malicious activity, it is Customer’s responsibility (and not that of RapidScale or its third party service provider) to determine whether or how to address such activity.
4. Customer acknowledges and agrees that RapidScale does not guarantee that there will be no security breaches, incidents, problems or threats to Customer’s network or systems and that the Security Services are intended only to help identify such threats. Except in cases of RapidScale’s willful misconduct that solely and directly causes such event, RapidScale shall not be responsible for any security breach or other incident that Customer experiences. Without limiting any other provision of the Agreement, RapidScale does not warrant and expressly disclaims any warranty that the Security Services will be error free or that they will detect and/or respond to all threats or malicious activity directed at Customer, Customer’s network or Customer’s systems. Further, RapidScale takes no responsibility for any security breaches, incidents, problems or threats that occur as a result of RapidScale’s fulfillment of Customer’s instructions.
5. RapidScale may collect and use Service Metrics for the purposes of providing, maintaining, protecting and improving the Security Services and developing new services. “Service Metrics” means any and all non-customer specific information, such as anonymized facts, figures, numbers, characters, text, observations, measurements, statistics, quantitative or qualitative attributes, failure or alert codes or other items of information that are generated, collected, derived or related to RapidScale’s performance of the Security Services, regardless of the method by which such information is memorialized or recorded, and provided that none of such data identifies or is able to identify or tie back to Customer. RapidScale may combine Service Metrics related to the Security Services with information collected from other Core Services or third parties in its sole discretion. Customer agrees that RapidScale may use the Service Metrics to: (a) carry out its obligations under the Agreement; (b) observe and report back to Customer on Customer’s usage of the Security Services and make recommendations for improved usage of the Security Services; and (c) identify trends, publish reports or otherwise use its findings in the performance of the Security Services. Customer acknowledges and agrees that RapidScale owns all right, title and interest in and to the Service Metrics, including any intellectual property rights that subsist in the Service Metrics. Customer further acknowledge that any Service Metrics provided to Customer may contain information that is designated confidential by RapidScale and that Customer shall not disclose such information other than as authorized in this Section without RapidScale’s prior written consent.
6. In addition to and without limiting the applicability of the termination provisions set forth in the Agreement, RapidScale may terminate the Security Services upon thirty (30) days’ prior written notice (which time frame may be less than thirty (30) days as RapidScale determines in good faith to be reasonably necessary or advisable in light of the relevant circumstance) in the event of a change in applicable laws, business circumstances, or regulations that has a material adverse impact on RapidScale’s ability to provide the Security Services in a commercially reasonable manner.
VCF Terms
1. If Customer licenses VMware Cloud Foundation (“VCF”) from RapidScale, the terms of this Section 8 apply. VCF is a subscription offer that includes vSphere, Enterprise Plus, vSAN Enterprise, NSX Ent Plus (Networking Only), Aria Suite Term Enterprise, Aria Ops for Networks ENT, HCX Enterprise, SDDC Manager, Tanzu Kubernetes Grid(s), and vCenter, Server Standard and any other licenses as may be offered by Broadcom in the VCF offering from time-to-time. VCF is licensed per core with a minimum of 16 cores per CPU required.
2. VCF and associated licensing and add-ons are authorized for use in the United States only. As set forth within the Service Order, licenses for VCF and associated licensing and add-ons which are identified as committed licenses (“Committed Licenses”) are for a term period of thirty-six (36) months. Billing for Committed Licenses will either be annually in advance or monthly in arrears as indicated in the Service Order. Any overages will automatically be usage-based and deemed “Non-Committed Licenses” and billed monthly in arrears. Any host running a virtual machine in a given calendar month will be charged for the total cores on that host for the entire month.VCF Licenses are granted on a per core / per CPU basis, with a sixteen (16) core minimum per CPU for each host that is enforced. All physical cores on a host must be licensed even if a lower number of cores is required. Customers must be on the latest major software version minus one (N-1) for no more than six (6) months for new deployments, and for no more than twelve (12) months for existing deployments. That is, once a new major VCF software version is released, Customer is required to move to the latest major software version within six (6) months for new deployments and within twelve (12) months for existing deployments. Customer is required to deploy consistent software versions for all deployed components of VCF. For example, VCF software version 5.1 has components vSphere version 8 and vSAN version 8. Customer is not permitted to deploy vSphere version 8 with vSAN version 7 inside a Customer Offering.
3. Customer will provide administration access to RapidScale for one (1) single virtual machine (“VM”) on every vCenter Server environment whether in Production, Testing, Development or other. RapidScale will install a usage meter instance to provision access, and maintain and audit licensing across each instance of vCenter Server. RapidScale is responsible for maintaining the current version of usage meter and providing monthly reports which will begin at the end of the calendar month during which the Customer first received the license key. Customer will provide additional access across vCenter where it is required to perform the function for licensing, support and/or auditing as necessary. RapidScale reserves the right to audit individual customer vCenter environments. If any discrepancies in licensing are identified, Customer shall be required to pay any underpaid licensing fees within thirty (30) days.
4. In the event Customer requests a trial for Broadcom offerings on their own equipment, then Customer must fill out a trial license request directly with Broadcom.
RapidScale Epic ServicesTo receive Epic related Services from RapidScale, Customer may be required to sign an addendum with Epic relating to the same. Customer agrees to install all elements necessary to support the Epic Controls as defined in the following document: https://view-su2.highspot.com/viewer/7f8c1d10c5da56e38f606f57a1c57c75?iid=6888f72fafc15a7afe656808#1

SECTION C

CLOUD SERVICE TERMS

In addition to the General Terms, the terms in this Section C (the “Cloud Service Terms”) shall apply to any Cloud Services. These Cloud Service Terms shall apply until termination of the applicable Services in accordance with the RapidScale Terms. “Cloud Services” means Services delivered on infrastructure leveraging public-cloud infrastructure, which could include, but not limited to, Amazon Web Services (AWS), Azure Cloud (Azure), and Google Cloud Platform (GCP) services, including the management of such AWS, Azure, or GCP services listed in Section A, Paragraph 31.c. Any term not otherwise defined in the Cloud Service Terms has the definition set forth in the General Terms.

Cloud Infrastructure. Customer understands that the Cloud Infrastructure may be maintained by RapidScale or a designated third-party or a combination of both and in any such case, the Cloud Services may be delivered under RapidScale’ master account and RapidScale shall be entitled to set-up a subaccount on behalf of Customer therein. Where RapidScale delivers the Cloud Services under a master account established with AWS, the default model for establishing a sub-account on behalf of Customer is the Solution Provider Program Model.
High-Risk Use. Customer shall not use any Cloud Services or Cloud Infrastructure for any application where a failure could result in death, serious injury, environmental damage, property damage or other material harm (examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments). Customer acknowledges that RapidScale makes no assurances that the Cloud Services or Cloud Infrastructure are suitable for any high-risk use. RapidScale disclaims all warranties not expressly stated in the Agreement to the maximum extent permitted by law.
Responsibility and Policy Terms. In connection with engaging RapidScale to provide Cloud Services to Customer, Customer understands and agrees to be bound all of the following:

(a) to the extent that Customer uses Amazon Web Services,

(i) AWS Managed Services Responsibility Matrix documents posted at https://view-su2.highspot.com/viewer/64949ce3219dfdc934b60e1f, and

(ii) the Privacy Policy for Cloud Services found at https://rapidscale.net/privacy-policy (collectively, the “AWS Responsibility and Policy Terms”); and

(b) to the extent that Customer uses Microsoft Azure,

(i) the Azure Managed Services Responsibility Matrix posted at https://view-su2.highspot.com/viewer/64949ce3219dfdc934b60e1f, and

(ii) the Privacy Policy for Cloud Services found at https://rapidscale.net/privacy-policy (collectively, the “MSFT Responsibility and Policy Terms”).

The AWS Responsibility and Policy Terms and the MSFT Responsibility and Policy Terms form a part of this Agreement and are incorporated herein by reference. The Privacy Policy for Cloud Services shall apply to the Cloud Services.

Interim Account Transfer Payments. From time-to-time, it may, as a prerequisite to receiving or discontinuing the Cloud Services, be necessary to transfer an AWS/Azure account to or from RapidScale. For the period of time that the account is “In-Flight” (i.e., the period of time commencing when the account has either (a) left an organization but has not yet entered into RapidScale’s organization or (b) has left the RapidScale organization but has not yet entered into another organization), Customer will be required to post a credit card with AWS/Azure. The credit card will be posted with AWS/Azure to pay for any AWS/Azure fees incurred by Customer’s account while the same is In-Flight.
Usage and Subscription Terms for Non-Resale Customers. Where AWS/Azure Usage is not resold by RapidScale, the billing relationship for Usage remains between Customer and AWS/Azure. The Subscription Fee set forth in the applicable Service Order will apply to all Usage regardless of whether RapidScale resells the same. Customer agrees to provide RapidScale with (1) administrative access necessary to install or enable RapidScale’s cost management and asset inventory tooling (e.g. CloudHealth by VMware) or (2) unaltered monthly Usage data (collectively “Usage Access Requirements”). If Customer does not provide RapidScale with the Usage Access Requirements, then RapidScale may bill Customer the Subscription Fee based on either (i) the estimated Usage set forth in an applicable Service Order or (ii) an estimate of Usage as determined by RapidScale at the time that Customer failed to provide RapidScale the Usage Access Requirements.
Additional Cloud Services Terms and Conditions. The additional Cloud Services terms and conditions set forth in the addenda located at https://rapidscale.net/msa-addenda, are each hereby incorporated into and made a part of the Agreement, as applicable to Cloud Services
Artificial Intelligence and Machine Learning Terms

7.1 RapidScale offers Professional Services that support various artificial intelligence (AI) and/or machine learning (ML) services offered by Google, AWS and Azure (“AI/ML Professional Services”). In-scope AI/ML Professional Services shall be set forth in a Service Document, and unless otherwise agreed in writing, such Services shall be performed within the environment set forth on the applicable Service Document.

7.2 Notwithstanding anything to the contrary in this Agreement, any Code Templates (e.g., reusable code snippets, frameworks, or libraries such as authentication modules, logging utilities, or error-handling framework), Infrastructure as Code (IaC) Scripts or Templates (e.g., Terraform, CDK, Ansible, or ARM templates used to automate the provisioning of infrastructure), CI/CD Pipeline Templates (e.g., YAML/human-readable data serialization language, JavaScript Object Notation, or other configuration templates for setting up continuous integration and deployment pipelines, such as those used in Azure DevOps or GitHub Actions), Process Documentation (e.g., standard operating procedures, best practice guides, or workflow documentation), Internal Tools and Utilities (e.g., scripts, command-line tools, or web-based utilities developed for general use within the RapidScale’s organization), Knowledge Bases and Training Materials (e.g., training manuals, onboarding guides, or FAQ documents), Design Templates (e.g., wireframes, UI/UX design patterns), Project or Ticket Templates (e.g., templates used to quickly populate project or ticket fields, notes, or recurring tasks, Reusable Modules or Components (e.g., software modules or infrastructure components that are designed for use across multiple customer engagements), Algorithms or Methods (e.g., algorithms, data processing techniques, or analytical methods), AI Prompts (e.g., system prompts and prompt refinement methods as developed as part of a Generative AI solution), models, software, tools or any other intellectual property or materials (collectively, “AI/ML Materials”) used or provided by RapidScale or third parties during the provision of the AI/ML Professional Services shall, as between Customer and RapidScale, remain the property of RapidScale (or such third-party) and shall be deemed included within the definition of Preexisting Material. Any license with respect to RapidScale’s AI/ML Materials to Customer shall be in accordance with Section 13(d) of the General Terms. Customer will not, and will not allow Users to, use an AI/ML Professional Service or RapidScale’s AI/ML Materials to develop algorithms or models that compete with any RapidScale Services, and RapidScale may immediately suspend or terminate Customer’s use of any AI/ML Professional Service or RapidScale’s AI/ML Materials upon any suspected violation of the preceding sentence and Customer agrees to immediately cease use of, and to the extent possible delete, such algorithm and/or model. Customer acknowledges that monetary damages will not be a sufficient remedy for breach of the preceding sentence; therefore, in the event of a such a breach, RapidScale will be entitled, without waiving any other rights or remedies, to obtain injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction. Such remedy shall be in addition to all other rights and remedies available to RapidScale at law or in equity. No ownership or license rights in and to RapidScale’s AI/ML Materials are conveyed to Customer, except as expressly set forth in this Agreement. Any developments, improvements, or derivatives of any RapidScale’s AI/ML Materials arising in the course of service delivery shall be owned entirely by RapidScale.

7.3 Customer agrees to supply only the data necessary for RapidScale to perform AI/ML Professional Services (“Customer AI/ML Data”), and such Customer AI/ML Data will be deemed Customer Content. Customer represents, warrants and covenants that (a) it has the legal right and required consents to (i) use the Customer AI/ML Data and (ii) provide the Customer AI/ML Data to RapidScale for the purposes specified in a Service Document, and (b) the Customer AI/ML Data will not include any regulated data, including any ePHI. Customer hereby represents and warrants that it has all necessary licenses and consents to allow RapidScale to share the Customer AI/ML Data with third parties to the extent necessary to perform the AI/ML Professional Services. RapidScale shall implement reasonable technical and organizational security measures to protect Customer AI/ML Data in accordance with Section 20 of the General Terms.

7.4 Customer acknowledges and agrees that RapidScale’s performance of AI/ML Professional Services is contingent upon the availability of Customer AI/ML Data, cooperation of third parties, and various factors that may influence the outcome of AI/ML-based insights, for which RapidScale is not responsible. Customer further acknowledges and agrees that the AI/ML Professional Services (i) are based upon emerging technology, (ii) may generate output that is inaccurate or offensive, (iii) are not designed for or intended to meet Customer’s regulatory, legal, or other obligations, and (iv) may produce output that is identical or similar to the output generated for other customers. Customer is responsible for assessing the accuracy of any output according to their use case, which may include employing human review of the output.

7.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THE GENERAL TERMS OR THIS AGREEMENT, (I) RAPIDSCALE IS PROVIDING THE AI/ML PROFESSIONAL SERVICES WITHOUT ANY WARRANTIES OF ANY KIND AND WITHOUT ANY INDEMNITY FOR ANY INTELLECTUAL PROPERTY RELATED CLAIMS, AND (II) CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE CUSTOMER AI/ML DATA PROVIDED BY OR ON BEHALF OF CUSTOMER TO RAPIDSCALE, AND CUSTOMER’S USE OF THE AI/ML PROFESSIONAL SERVICES OR THE INFORMATION, TEXT, AND CONTENT INCLUDED IN THE OUTPUT ARE AT CUSTOMER’S OWN RISK, INCLUDING WITHOUT LIMITATION, ACCURACY OF THE RESULTS, AVAILABILITY, SUITABILITY, RELIABILITY, OR USE OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE AI/ML PROFESSIONAL SERVICES.

7.6 High-Risk Use. Customer shall not use any Professional Services with AI/ML where a failure or such use could result in death, injury, environmental damage, property damage or other material harm (examples of prohibited uses include medical advice). Customer acknowledges that RapidScale makes no assurances that the Professional Services with AI/ML are suitable for any high-risk use.

7.7 RapidScale reserves the right to discontinue or modify the provision of the Professional Services at any time if RapidScale believes Customer is failing to comply with the RapidScale Terms.

RapidScale Test Environment Terms

8.1 RapidScale may provide to Customer access to a proprietary Artificial Intelligence/Machine Learning test environment (the “Sandbox Environment”) as an optional free service, and Customer may choose to use the Sandbox Environment or not in its sole discretion. RapidScale reserves the right to discontinue or modify the provision of the Sandbox Environment at any time with or without notice. Customer agrees to use the Sandbox Environment at its own risk and hereby releases RapidScale from any liability arising out of or resulting from Customer’s use of the Sandbox Environment.

8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THE GENERAL TERMS OR THIS AGREEMENT, RAPIDSCALE IS PROVIDING THE SANDBOX ENVIRONMENT “AS IS” AND “WITH ALL FAULTS”, WITHOUT ANY WARRANTIES OF ANY KIND AND WITHOUT ANY INDEMNITY FOR ANY INTELLECTUAL PROPERTY RELATED CLAIMS. RAPIDSCALE IS NOT ASSUMING RESPONSIBILITY FOR ANY LOSSES (DIRECT OR INDIRECT), IRRESPECTIVE OF CAUSE, THAT MAY OCCUR FROM ANY USE OF THE SANDBOX ENVIRONMENT, EVEN IF DUE TO RAPIDSCALE’S NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT OR ANY OTHER BASIS. IF, NOTWITHSTANDING THIS SECTION 8.2, RAPIDSCALE IS HELD TO BE LIABLE TO CUSTOMER, OR ANY THIRD PARTY IN CONNECTION WITH THE CUSTOMER’S USE OF THE SANDBOX ENVIRONMENT, FOR BREACH OF CONTRACT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LEGAL LIABILITY, FOR ANY FAILURE OF THE SANDBOX ENVIRONMENT OR ANY OTHER CLAIM ARISING IN CONNECTION WITH ANY USE OF THE SANDBOX ENVIRONMENT, THEN IN NO EVENT SHALL RAPIDSCALE’S TOTAL AGGREGATE LIABILITY HEREUNDER EXCEED TEN DOLLARS (USD $10.00).

8.3 High-Risk Use. Customer shall not use the Sandbox Environment where a failure or such use could result in death, injury, environmental damage, property damage or other material harm (examples of prohibited uses include medical advice). Customer acknowledges that RapidScale makes no assurances that the Sandbox Environment is suitable for any high-risk use.