END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is an agreement between you, the licensee hereunder (the “Licensee”), and Rapid Applications Group, LLC (“Rapid Applications”), regarding the Rapid Enterprise Resource Planning (“Rapid ERP”) software. The Licensee and Rapid Applications may be jointly referred to as the “Parties” herein.
By clicking “I Accept” below, the Licensee is accepting the terms of this Agreement. If these terms are not acceptable, the Licensee should not access, install, or use any portion of the Software, and should promptly notify Rapid Applications, in which case a refund of any license fee paid in advance for the software will be provided. (If this Agreement has been accepted by one or more users of a business entity who is the Licensee and it is subsequently not accepted by a later user within the same entity, then the refund provided will be limited to any license fee paid in advance for the particular user who has not accepted the terms.)
The “Software” as defined herein is the Rapid ERP construction business management software (however accessed, whether through an Internet browser, mobile device, other device, or computer application, or otherwise) and the related software (including any mobile application or other application), documentation, and other materials provided by Rapid Applications therewith, including updates, revisions, modifications, additions, corrections and fixes thereto, and all Added Modules (as defined below) for which a license is separately acquired by the Licensee.
PLEASE NOTE: Section 9 of this Agreement sets forth terms for how Rapid Applications may use and disclose the Licensee’s data, including disclosing such data to a third party in exchange for payment.
1. License. During the Term (as defined in Section 14.a below), and for so long as the Licensee is in compliance with all obligations set forth in this agreement, Rapid Applications grants the Licensee a non-exclusive, non-transferable, revocable, and limited license to use the Software, solely within its organization for the internal business purpose of operating its construction-related business. The Software may be used by one designated representative of the Licensee for each “user license” purchased for the license. Each such representative who is assigned a user name or similar identification by Rapid Applications and who logs into the Software is referred to herein as an “Authorized User.” Each Authorized User shall be bound to the terms of this Agreement. All other use of the Software, and use by any other representative of the Licensee or any other person other than an Authorized User, is strictly prohibited. The Licensee acknowledges that it will generally be provided with access to and use of the Software online, and therefore, with the limited exception of certain aspects of the Software that may or are required to be installed on the Licensee’s computer systems, mobile devices, or other devices, the Licensee is not being granted the right to copy such Software to its own computer systems or devices. The Software may be installed and used on one device per Authorized User, unless Rapid Applications agrees otherwise in writing.
2. License Fees. In consideration for this license, the Licensee shall pay to Rapid Applications the initial and/or continuing license fees set forth in an invoice, purchase order, or other documentation provided by Rapid Applications.
3. Updates. The license grants the Licensee the right to use the Software during the Term as initially provided to the Licensee and any updated versions of the same Software that are released by Rapid Applications for so long as the applicable ongoing license fees are paid.
4. Added Modules. Rapid Applications may develop additional modules of the Software providing additional or increased capabilities or functions (“Added Modules”) from time to time. The Licensee has the option to acquire a license to such Added Modules as part of the Software for an additional license fee or other payment and terms, which may be set forth in a separate invoice, order form, or other documentation. Rapid Applications shall have the discretion to designate whether a particular development or item is an updated version of the Software (which is included in the original license under Section 3 above), or an Added Module (which must be separately licensed as specified in this Section), in its discretion. Rapid Applications, at its discretion, may grant a license for Added Modules to Licensee and/or other users without charge at various times, such as on a temporary introductory basis, in which case Rapid Applications shall retain the right to terminate such complimentary license at any time. Rapid Applications will notify the Licensee of any fees or other terms for continuing to license the applicable Added Modules thereafter.
5. Software Operation Assistance. On its web site or another location it designates, Rapid Applications will provide online help resources for the operation of the Software. In the event that the online resources do not adequately resolve questions or issues that the Licensee may have, Rapid Applications will make its representatives available by telephone and/or e-mail, upon the reasonable request of the Licensee, to provide guidance and discuss matters related to the Software and its operation. If requested by the Licensee, and subject to the availability of Rapid Applications’ representatives, Rapid Applications may make available one of its representatives for on-site assistance at the Licensee’s location, provided that the Licensee shall be required to pay any per diem assistance charge that may be imposed by Rapid Applications and all reasonable expenses incurred by Rapid Applications in making its representative available (including reasonable travel, lodging, and food expenses).
6. Service and Downtime. The Licensee acknowledges that some or all of the Software and the data entered by the Licensee will be stored on the networks of Rapid Applications or its third party service providers (such as cloud service providers), and therefore the Licensee’s use of the Software requires Internet connectivity and connection to those networks for operation. The Software may not be compatible with or available for all computer systems and devices. The Licensee should visit Rapid Applications’ website or contact Rapid Applications to determine specific requirements for systems and devices using the Software, which requirements may change from time to time. Whether the Software is made available through Rapid Applications’ own network or a third party service provider, the Licensee agrees that occasional downtime, updates and maintenance are sometimes required during its business hours, which may block access or impair responsiveness and accessibility. The Licensee acknowledges that this downtime for the Software, including any Added Modules, may be significant during the period of beta testing and evaluation thereof. The Licensee further agrees that the Software may also be unavailable due to emergency downtime to protect the system, back-up data, or because of force majeure events. Availability of the Software at all times is subject to the Licensee’s maintenance of its interface and connectivity to the Internet. To the extent any of the Software is made available through its own network, Rapid Applications will use commercially reasonable efforts to make the Software available at all times, to restrict maintenance to occur during non-peak hours, and to provide the Licensee with notification of scheduled downtime. To the extent any of the Software is made available through a third party service provider network, Rapid Applications will select service providers that it reasonably believes to be reliable and qualified to provide such services. However, it is anticipated there will be downtime for the Software due to maintenance by those third parties and other matters, and Rapid Applications cannot make any guarantee regarding any minimum amount of downtime. Further, the third party service providers may not provide advance notice to Rapid Applications of downtime, meaning that Rapid Applications may not be able to notify the Licensee of scheduled downtime.
7. Licensee Actions. Defects due to the following by the Licensee are not considered downtime under this Agreement, and the Licensee acknowledges and agrees that these events may cause further unavailability or impairment of the Software: (i) negligence, errors, misuse, modification or damage to the Software; (ii) failure to use defect corrections, enhancements, updates or workarounds; (iii) use combined with products, information, third-party software or an interface not provided or recommended by Rapid Applications; (iv) defects in quality or integrity of data from other systems, or in hardware, software or equipment not part of the Software, or which is not operating according to manufacturer specifications; and (v) failure to maintain proper connectivity. Any actual costs to Rapid Applications for investigation and repair of issues that relate to the foregoing issues, including a reasonable fee for its employees’ and agents’ time, shall be paid by the Licensee.
8. Collection of Usage Information. The Software may collect general statistical information about the Licensee’s operating environment, including, without limitation, information regarding the Licensee’s network, processor, computer memory, installed software and configurations and other miscellaneous hardware. Licensee hereby authorizes Rapid Applications to collect such data. Rapid Applications may use and disclose such data, and Licensee hereby consents to such use and disclosure, to third parties in aggregated form with no information that could be used to identify Licensee. Rapid Applications may use the data for purposes of enforcing this Agreement, improving the Software and, with respect to aggregated data, for marketing and other purposes.
9. The Licensee’s Data; Usage and Disclosure.
a. Any data of the Licensee entered into the Software by the Licensee or its agents (the “Licensee Data”) will remain the property of the Licensee, but the Licensee grants Rapid Applications certain rights to that Licensee Data as described herein. By entering any Licensee Data into the Software, the Licensee grants Rapid Applications a royalty-free, non-exclusive, perpetual license to use such Licensee Data in accordance with this Agreement. Rapid Applications will not intentionally manipulate or alter the Licensee Data for any purpose.
b. The Licensee grants Rapid Applications a license to access, use, copy, disclose, distribute, store, transmit, share, and reformat the Licensee Data as required for the purpose of providing the services to the Licensee under this Agreement and operating the Software. This includes sharing the Licensee Data with any third parties assisting Rapid Applications with providing the Software services to the Licensee.
c. The goal of the Software is to provide integrated management services to help Licensee more efficiently operate its construction-related business. To further support this goal, Rapid Applications may use the Licensee Data itself, and share the Licensee Data with its affiliates and third party suppliers, manufacturers, vendors, and/or financial institutions that provide services or products to the construction industry (collectively, “Suppliers”) for the purpose of marketing, market research, promotions, fulfilling product or service orders to the Licensee, improving products, services, or processes related to the Licensee (including allowing faster communications and responsiveness), diagnostic purposes related to the Licensee’s business, or related purposes, which Rapid Applications in its discretion believes could be beneficial or helpful to the Licensee. For instance, Rapid Applications may collect Licensee Data regarding the Licensee’s business supply needs, and disclose that information and the Licensee’s contact information to a Supplier to allow that Supplier to contact the Licensee and market products or services meeting the Licensee’s needs.
d. Rapid Applications may also use the Licensee Data for any purpose related to its own services and products offered in the construction industry, including for purposes of developing, improving, marketing, and selling its own services and products. For instance, Rapid Applications may utilize information related to the Licensee’s business operations alone or in conjunction with similar data from other parties to develop new services aimed at meeting operational needs of the Licensee and similar businesses.
e. The Licensee Data used and disclosed in the manner described in the preceding subsections of this Section 9 will include personally identifiable information regarding the Licensee’s business. The Suppliers with whom the Licensee Data may be shared must agree in writing to Rapid Applications that they will not use the Licensee Data for any other purpose or disclose the Licensee Data to any third party, except for any successor in interest of theirs. Rapid Applications may enter into agreements with such Suppliers under which it will receive compensation in exchange for the access to the Licensee Data. The Suppliers may be located in the Licensee’s country or any other country. The Licensee acknowledges and agrees that (i) it will not be entitled to any compensation based on Rapid Applications’ or any Supplier’s use or sharing of the Licensee Data as authorized herein, and (ii) the Licensee’s authorization for the use and sharing of the Licensee Data is a significant part of the consideration given by the Licensee that has induced Rapid Applications to grant the license hereunder.
f. Rapid Applications may share the Licensee Data with its marketing, technical, accounting, legal or other professionals to assist Rapid Applications in its business operations. Rapid Applications may also access and/or disclose the Licensee’s data if required to do so by law or in the good faith belief that such action is necessary to: (i) conform to the edicts of the law or comply with legal process served on Rapid Applications; (ii) protect and defend Rapid Applications’ rights or property, including to the Software; or (iii) act under exigent circumstances to protect the personal safety of users of the Software or the public. The Licensee Data may be provided by Rapid Applications to any successor in interest in the Software.
g. Rapid Applications may use and disclose to third parties the Licensee Data in any other manner authorized by the Licensee or to fulfill any request or inquiry of the Licensee.
h. Rapid Applications does not offer licensees of the Software the right to opt out of its terms for use or sharing of the Licensee Data, since Rapid Applications regards this use and sharing as a key benefit of using the Software. Each licensee has the option of using the Software as it is presently configured subject to the terms of this Agreement or terminating its use of the Software.
10. The Licensee’s Data; Security.
a. Rapid Applications and its third party service providers (including cloud service providers) follow commercially reasonable security measures, which may include firewalls, virus screening, logon IDs, passwords, intrusion detection, periodic reporting, security patches and virus definitions. Rapid Applications, itself or through its third party service providers, routinely backs up information, and archives and holds data in secure storage. Internal security policies of Rapid Applications, or any third party service provider it engages, will address data retention and destruction to balance privacy, integrity, access controls, storage, cost management, and legal requirements. Loss of the Licensee Data may occur and the Licensee should provide for additional back-up storage of its original data. The Licensee acknowledges and agrees that no method of transmission over the Internet, or method of electronic storage, is 100 percent secure. Therefore, while Rapid Applications strives to use commercially acceptable means to protect the Licensee Data, Rapid Applications cannot guarantee or warrant its absolute security. In addition to the Licensee Data, Rapid Applications may store information on its or its third party service providers’ networks regarding the Licensee’s usage of the Software, including common information or selections made by the Licensee, to expedite the Licensee’s usage of the software.
b. Data may be stored on networks located in the United States or any other country in which Rapid Applications or its third party service providers maintain facilities. The Licensee consents to any such transfer of information outside of the Licensee’s country.
11. Specific Prohibited Uses. The Licensee, each Authorized User, and any other party acting on the Licensee’s behalf may not (i) use the Software in any manner that could damage, disable, overburden, or impair the Software or interfere with a third party’s use of the Software; (ii) modify, decompile, disassemble or otherwise reverse engineer the Software; (iii) prepare derivative works of the Software or any portion thereof; (iv) copy or duplicate the Software, or allow anyone else to do so, except as necessary to access the Software or install any mobile application or other application included in the Software; (v) download any portion of the Software from the Internet to its computer systems and devices, except that any mobile application or other application offered by Rapid Applications as part of the Software may be downloaded by the Licensee; (vi) remove any product identification or labeling from any element of the Software; (vii) permit any party other than an Authorized User access or use the Software; or (viii) use the Software for any illegal purpose or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, obscene, or is otherwise objectionable or reflecting negatively on Rapid Applications. The Licensee is solely responsible for protecting its unique user name or other identification and password for accessing the Software, and will be responsible for all activities performed under that user account.
12. Third Party Products and Services. Rapid Applications or third parties may make available third-party products or services, including, for example, non-Rapid Applications software, applications, and other products and services (collectively, “Third Party Services”). If the Licensee acquires such Third Party Services, and any exchange of data between the Licensee and the third party provider, is solely between the Licensee and the applicable third party provider. Rapid Applications does not warrant or support Third Party Services, whether or not they are recommended or given any designation by Rapid Applications, unless Rapid Applications otherwise specifies in writing. If the Licensee installs or enables a Third Party Service for use with the Software, the Licensee grants Rapid Applications permission to allow the third party provider to access the Licensee Data as required for the integration of that Third Party Service with the Software. Rapid Applications is not responsible for any disclosure, modification or deletion of the Licensee Data resulting from access by a Third Party Service. The Software may contain features designed to integrate operations with Third Party Services. To use such features, the Licensee may be required to obtain access to Third Party Services from their providers, and may be required to grant Rapid Applications access to its account on the Third Party Service. If the provider of a Third Party Service ceases to make the Third Party Service available for integrated operation with the Software, Rapid Applications may cease providing the Software features without entitling the Licensee to any refund, credit, or other compensation.
13. Certification and Audit. Upon the request of Rapid Applications, the Licensee agrees to provide a declaration signed by an authorized representative certifying the actual number of users of the Software and the sites where the Software is being used. Upon the request of Rapid Applications, a representative of Rapid Applications shall be permitted to audit and visit the Licensee’s premises to inspect its use of the Software to confirm that it is complying with this Agreement.
a. The term for this Agreement and the license hereunder shall be as set forth in the invoice, order form, or other documents between Rapid Applications and Licensee, unless earlier terminated in accordance with this Agreement (the “Term”). To the extent that the Licensee is participating in a “free trial” of the Software, then that free trial period shall be deemed part of the Term and this Agreement shall govern the free trial period as well. Additional terms for the free trial may be set forth in a separate invoice, order form, or other documentation provided by Rapid Applications.
b. This Agreement may be terminated (i) by either Party at will, by giving the other Party at least 30 days’ prior written notice; or (ii) by Rapid Applications in the event that the Licensee fails to pay any amounts owed for the license as set forth in the invoice, order form, or otherwise, or if the Licensee fails to comply with any of the terms in this Agreement.
c. If the Licensee chooses to terminate at will pursuant to Section 14.b(i) above or Rapid Applications chooses to terminate for the Licensee’s breach pursuant to Section 14.b(ii) above, where such termination becomes effective prior to the end of the Term, the Licensee shall be obligated to pay Rapid Applications the full remaining license fees and any other charges that would have been payable over the remainder of the Term had it not been terminated. This payment shall be in addition to, and not in lieu of, any other legal or equitable rights to which Rapid Applications may be entitled based on a breach by the Licensee. If Rapid Applications chooses to terminate this Agreement at will pursuant to Section 14.b(i), the Licensee shall be obligated to pay only those license fees and any other charges that have come due prior to the date of the termination to the extent they remain unpaid. In no circumstances will the Licensee be entitled to receive any refund of the license fee or any other amounts paid to Rapid Applications prior to the termination of this Agreement. Every section of this Agreement that by its terms is intended to survive expiration and/or termination of the license, including but not limited to Sections 9, 11, 14.c, 14.d, 15, 16, 17, 18, 19, 20, 21, and 27 shall survive the expiration or termination of the license for any reason. Otherwise, following termination, the Parties shall have no further obligations to each other.
d. Upon termination of the license, Rapid Applications may immediately terminate the Licensee’s access to and use of the Software. The Licensee shall delete from all of the Licensee’s computer systems and devices, including any mobile devices, any application version of the Software installed thereon. Licensee shall return to Rapid Applications any physical copies of the Software, as well as any partial copies thereof (including copies or partial copies that have been modified, merged, or included with other software programs). If requested by Rapid Applications, Licensee shall certify in writing that the Licensee has not retained any such programs in electronic form or otherwise. The Licensee shall no longer be entitled to access or use the Software for any reason, including to retrieve any data entered into the Software. The Licensee acknowledges that such data may be destroyed upon the termination of this Agreement.
15. Ownership of Intellectual Property Rights. The Software is proprietary to Rapid Applications and Rapid Applications reserves all rights to the Software not expressly granted herein. This Agreement does not grant the Licensee an ownership interest in or to the Software. All right, title, and interest in and to the Software, including all associated intellectual property rights (such as all patent rights, copyrights, trademarks, service marks, related goodwill, and confidential and proprietary information rights) in the Software, are and shall remain with Rapid Applications. The Software does not constitute a “work made for hire” under 17 U.S.C. § 101. The Software is protected by trade secret laws, copyright laws, and international copyright treaties, as well as other intellectual property laws and treaties. The Licensee shall not undertake to patent, copyright, or otherwise assert proprietary rights to the Software or any portion thereof. Rapid Applications represents that it has the right to license the Software to the Licensee. Nothing contained in this Agreement shall be deemed to give the Licensee any right, title, or interest in Rapid Applications’ name, trademarks (including but not limited to Rapid ERP), service marks, logos, or other brand identifications. If the Licensee develops or improves, or suggests developments or improvements for, any aspect of the Software or any other intellectual property of Rapid Applications, the development or improvement will inure to the benefit of Rapid Applications, will be owned by Rapid Applications as a part of the Software and its intellectual property, and may, in Rapid Applications’ sole determination, be made available to other licensees of Rapid Applications.
16. Confidentiality. The Licensee acknowledges that the source code, techniques, algorithms and processes contained in the Software constitute valuable trade secrets and/or confidential information of Rapid Applications, and the Licensee agrees to maintain the confidentiality of the Software and, in particular, to restrict access to and use of the Software to the Licensee and the Authorized Users of Licensee who agree to use the Software in accordance with the terms hereof by accepting this Agreement. The Licensee shall keep confidential and use its best efforts to prevent and protect the Software from unauthorized disclosure or use. The Licensee shall immediately inform Rapid Applications in writing if any employee or agent of the Licensee violates the terms and conditions of this Section, or if the Licensee learns of any actual or possible unauthorized disclosure of the Software or any portion thereof.
17. Prohibition on Transfer and Resale. Neither the Licensee nor any other party acting on the Licensee’s behalf may transfer, resell, distribute, rent or otherwise sub-license the Software, in its original or any modified form, alone or in a manner incorporated into any other product or software. Any attempt to do so is deemed void. Individual “user licenses” are not transferable, and the “Authorized Users” for the Licensee may not be changed unless agreed in writing by Rapid Applications.
18. Limited Warranty. THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE. RAPID APPLICATIONS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE REGARDING THE SOFTWARE; AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING (WITHOUT LIMITATION) ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED BY RAPID APPLICATIONS. RAPID APPLICATIONS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. RAPID APPLICATIONS DOES NOT WARRANT THAT THE SOFTWARE, INCLUDING ANY APPLICATION INCLUDED IN THE SOFTWARE, WILL BE COMPATIBLE WITH THE LICENSEE’S COMPUTER SYSTEMS OR DEVICES.
19. Limitation of Liability. IN NO EVENT SHALL RAPID APPLICATIONS OR ITS AGENTS OR EMPLOYEES BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, IN TORT, IN NEGLIGENCE, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF USE, INFORMATION, GOODWILL, PROFIT, WORK STOPPAGE, DATA, BUSINESS OR REVENUE, OR FOR UNAUTHORIZED OR WRONGFUL DISCLOSURE OR USE OF DATA) ARISING OUT OF THE USE OF, OR INABILITY TO USE THE SOFTWARE, OR ARISING OUT OF ANY DEFECT IN ANY ASPECT OF THE SOFTWARE, EVEN IF RAPID APPLICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. RAPID APPLICATIONS IS ALSO NOT LIABLE FOR DAMAGE DONE TO OR CAUSED BY THIRD PARTY PRODUCTS USED IN CONJUNCTION WITH THE SOFTWARE. IN ANY EVENT, (i) THE ENTIRE LIABILITY OF RAPID APPLICATIONS WITH RESPECT TO ANY DOWNTIME OF THE SOFTWARE SHALL BE LIMITED TO EXTENDING THE TERM OF THE LICENSE FOR THE SOFTWARE FOR A PERIOD OF TIME EQUAL TO THE PERIOD OF DOWNTIME AND (ii) THE ENTIRE LIABILITY OF RAPID APPLICATIONS FOR ANY OTHER MATTER WITH RESPECT TO THE SOFTWARE SHALL BE LIMITED TO THE LICENSE FEES ACTUALLY PAID BY THE LICENSEE FOR THE SOFTWARE DURING THE 12 MONTHS PRIOR TO THE LAST OF THE EVENTS GIVING RISE TO THE ALLEGED DAMAGE.
20. Indemnification. The Licensee agrees to indemnify, defend, and hold Rapid Applications and its subsidiaries and affiliated companies and their shareholders, officers, directors, agents, employees and attorneys, harmless for any losses, claims, or damages, including without limitation, reasonable attorneys fees, however arising, including without limitation, through negligence, arising out of or in connection with the use or misuse of the Software or any breach of this Agreement.
21. Remedies. If the Licensee attempts to use, copy, license or convey the Software, the confidential information therein, or any portion thereof in a manner contrary to the terms of this license or in derogation of Rapid Applications’ proprietary rights, whether as explicitly herein stated, determined by law, or otherwise, Rapid Applications shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action, the Licensee hereby acknowledging that other remedies are inadequate.
22. Amendments. Rapid Applications may, in its sole discretion, establish modified terms of this Agreement to govern the continued use of the Software following the initial date of this Agreement and the license, which terms shall be binding on the Licensee. Such updated terms and conditions shall be provided to the Licensee by e-mail or displayed upon further use of the Software. Continued use of the Software shall constitute acceptance of such amendments.
23. Taxes. The Licensee is responsible for all taxes imposed in connection with the license to the Licensee of Software or services or which Rapid Applications may incur in respect of the license of the Software (except taxes imposed on Rapid Applications’ income) including all import duties, customs fees, levies or imposts, and all sales, use, value added, gross receipts or other taxes of any nature and any penalties, interest and collection or withholding costs associated with any of the foregoing items. All such amounts are in addition to other amounts payable hereunder.
24. Force Majeure. Rapid Applications shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from an act of force majeure, including acts of God, war, riot, natural disaster, terrorism, or any other causes beyond the reasonable control of Rapid Applications; provided, that, in order to be excused from delay or failure to perform, Rapid Applications must act diligently to remedy the cause of such delay or failure.
25. Miscellaneous. This Agreement is the complete and exclusive statement of the agreement between the Licensee and Rapid Applications with respect to the subject matter of this Agreement. This Agreement supersedes any proposal or prior agreement, oral or written, and any other communication between the Licensee and Rapid Applications relating to the subject matter of this Agreement. Any provision of this Agreement which is unenforceable or invalid or the inclusion of which would affect the validity, legality or enforcement of this Agreement shall be modified so as to conform to applicable law or if the same cannot be modified to conform with applicable law, shall be of no effect, but all remaining provisions of this Agreement shall remain in full force and effect. Each of the Parties hereto is an independent contractor engaged in the operation of its own respective business and neither Party shall have any authority to enter into any contract, assume any obligations or make any warranties or representations on behalf of the other party. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Upon written notice to the Licensee and at no additional cost to Rapid Applications, Rapid Applications may assign or transfer this Agreement, and any or all of Rapid Applications’ or Rapid Applications’ rights and obligations hereunder, to any party. The obligations of Rapid Applications under this Agreement run only to the Licensee but not to its customers or any other persons. Under no circumstances shall any affiliate, customer of the Licensee or any other person be considered a third party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement. Additional terms may also apply for any mobile application that is licensed as part of the Software, including terms required by the provider of the operating system for the mobile device.
26. Choice of Law; Forum Selection. The Parties hereby agree that this Agreement and the license shall be interpreted under and governed by the laws of the State of Colorado, U.S.A., without reference to its conflict of law rules. Except for actions for injunctive relief under Section 21, which Rapid Applications may bring in any court of competent jurisdiction, any and all controversies, disputes or claims between Rapid Applications, its subsidiaries and affiliated companies or their shareholders, officers, directors, agents, employees and attorneys (in their representative capacity); and the Licensee arising out of or related to this Agreement or the validity hereof shall be submitted for arbitration on the demand of any involved party. Such arbitration proceedings shall be conducted in Denver, Colorado, will be submitted to the American Arbitration Association (“AAA”), and will be heard by one arbitrator in accordance with the then current rules of AAA applicable to commercial arbitration. Any arbitration award shall be based on established law and shall not be made on broad principles of justice and equity. All jurisdictional issues will be decided by the arbitrator. The prevailing party in any action to enforce any provision of this Agreement shall recover all costs and attorneys’ fees incurred in connection with the action.
27. Third Party Web Sites and Software. The Software may contain links to software, applications, and web sites of third parties not controlled or operated by Rapid Applications, including those of other private entities and organizations. Licensee acknowledges and agrees that when it follows such a link, it is then subject to the terms for such new software, application, or web site. Any links are provided solely for the Licensee’s convenience, and Rapid Applications does not endorse the content or operator of any third party software, application, or web site. Further, content of third parties, including advertisements and hyperlinks, may appear on the Software. Rapid Applications makes no warranty or representation of any kind as to the accuracy, currency, or completeness of any information contained in any linked third party software, application, or web site or the content therein, and the Licensee agrees that Rapid Applications will have no liability for any damages or injuries of any kind arising from the operation, content, or information on such software, application, or web site.
The Licensee may acknowledge its acceptance of the terms of this Agreement by clicking “I Accept” below. Otherwise, the Licensee should not access, install, or use any portion of the Software, and should notify Rapid Applications, in which case a refund of the license fee paid, or the license fee paid for the particular Authorized User, if any, will be provided.
If the Licensee is a business entity, then the individual clicking “I Accept” on its behalf represents that it has authority to bind such entity to this Agreement.
I DO NOT ACCEPT