Software as a Service (SaaS) Agreement

RapidAds SaaS Agreement

THIS AGREEMENT PROVIDES FOR ARBITRATION OF ANY DISPUTES UNDER SECTION 12(g) BELOW

RapidAds Inc. Software as a Service (SaaS) Agreement

This Software as a Service (SaaS) Agreement (this “Agreement“), effective as of the date (the “Effective Date”) specified in the online order form located at https://itsrapid.io/rapidads-order-form/ or as otherwise agreed to in writing by the parties (the “Order Form”), is by and between RapidAds, Inc., a Delaware corporation with offices located 3790 El Camino Real #1032, Palo Alto, CA 94306 (“Service Provider“), and the (“Client“) specified in the Order Form. Service Provider and Client may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Service Provider provides access to Services for its customers.

WHEREAS, Client desires to access the Service Provider Products  and Service Provider desires to provide Client access to the Service Provider Products, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions.
    • Aggregated Statistics” means data and information related to Client’s use of the Services that is used by Service Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services for Service Provider’s internal use and Service development purposes. Aggregated Statistics does not include Client Data.
    • Authorized User” means Client’s employees, consultants, contractors, agents and Client customers who who are authorized by Client to access and use Service Providers Products under the rights granted to Client pursuant to this Agreement.
    • Client Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User that is processed through the Service Provider Platform.
    • Client IP” means Client Data and work product created for and owned by Client.
  • Documentation” means Service Provider’s user manuals, handbooks, and guides relating to the Services provided by Service Provider to Client either electronically or in hard copy form/end user documentation.
  • Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  • Service Provider Cloud” means the internet-based provider of storage and computing power used by the Service Provider to host and operate the Service Provider Platform.
  • Service Provider IP” means any patents, patent applications, trademarks, service marks, copyrights, and software related to the Service Provider Products. Service Provider IP does not include work product created for and owned by Client.
  • Service Provider Platform” means the software platform of the Service Provider located in the Service Provider Cloud which Service Provider uses to provide the Services.
  • Service Provider Products” means the Services and Documentation.
  • “Services” and “Software as a Service” means Service Provider’s Platform.
  • Third-Party Products” means any third-party products provided with or incorporated into the Service Provider Products.
  1. SAAS Access and Use.
    • Provision of Access; License. Subject to the terms and conditions of this Agreement, Service Provider hereby grants Client a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 12(h)) right to access and use the Services during the Term including any upgrades or improvements made to the Services which Service Provider provides to Client, solely for use by Authorized Users in accordance with the terms and conditions herein and limited to Client’s internal use.
    • Documentation License. Subject to the terms and conditions contained in this Agreement, Service Provider hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(h)) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services).
    • Use Restrictions. Client shall not use the Service Provider Products for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Service Provider Products, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service Provider Products; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to Service Provider Products, in whole or in part; (iv) remove any proprietary notices from the Service Provider Products; or (v) use the Service Provider Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    • Suspension. Notwithstanding anything to the contrary in this Agreement, Service Provider may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Service Provider Products if: (i) (A) there is a threat or attack on any of the Service Provider IP; (B) Client’s or any Authorized User’s use of the Service Provider IP disrupts or poses a security risk to the Service Provider IP or to any other customer or vendor of Service Provider; (C) Client, or any Authorized User, is using the Service Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Service Provider’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) for reasons outside of Service Provider’s control, any vendor of Service Provider has suspended or terminated Service Provider’s access to or use of any third-party services or products required to enable Client to access the Service Provider Products; or (iii) in accordance with Section 6(b)(ii) (any such suspension described in subclause (i) through (iii), a “Service Suspension”). Service Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. Service Provider shall use commercially reasonable efforts to resume providing access to the Service Provider Products as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Service Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
    • Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Service Provider may monitor Client’s use of the Service Provider Products and collect and compile Aggregated Statistics. As between Service Provider and Client, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Service Provider. Client acknowledges that Service Provider may compile Aggregated Statistics based on Client Data input into the Services. Client agrees that Service Provider may use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Client, Client’s customers, Client Data or Client’s Confidential Information.
    • Client SAAS Responsibilities. Client is responsible and liable for all uses of the Service Provider Products resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service Provider Products, and shall cause Authorized Users to comply with such provisions.
  2. Third-Party Products and Materials.
    • Third-Party Products through Platform. All Third-Party Products are subject to their own terms and conditions.
  3. Maintenance and Support. Subject to the terms and conditions of this Agreement, Service Provider shall make reasonable efforts to provide the Client maintenance and support for the Services.  All of Service Provider’s maintenance and support services shall be billed at Service Provider’s standard listed rates set forth in Order Forms.
  4. Fees and Payment.
    • Fees. Client shall pay Service Provider the fees for Client’s use of the Services as set forth in any Order Forms.
    • Late Fees.  If Client fails to make any undisputed payment when due, without limiting Service Provider’s other rights and remedies: (i) Client shall reimburse Service Provider for all reasonable costs incurred by Service Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (ii) if such failure continues for ninety (90) calendar days or more, Service Provider may suspend Client’s and its Authorized Users’ access to any portion or all of the Service Provider Products until such amounts are paid in full.
    • Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes on any amounts payable by Client hereunder, other than any taxes imposed on Service Provider’s income.
  5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third-party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, to establish a Party’s rights under this Agreement or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, upon the request of a disclosing Party, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  6. Intellectual Property Ownership; Certain Licenses.
    • Service Provider IP. Client acknowledges that, as between Client and Service Provider, Service Provider owns all right, title, and interest, including all Intellectual Property Rights, in and to the Service Provider IP. Client has no right or license with respect to any Service Provider IP except as expressly set forth in the license grants Section 2(a) and 2(b).  All other rights in and to the Service Provider IP are expressly reserved by Service Provider.
    • Client IP. Client owns all right, title and interest, including all Intellectual Property Rights, in and to the Client IP. Service Provider has no right or license with respect to any Client IP except as expressly licensed under this Section 7.  All other rights in and to the Client IP are expressly reserved by Client.
    • Client hereby grants to Service Provider (1) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Service Provider to provide the Services to Client, and (2) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics.
    • Client represents, warrants, and covenants to Service Provider that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Service Provider and used by Service Provider and Client in accordance with this Agreement, the Service Provider and Client does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third-party or violate any applicable law (including without limitation and any data collection or data privacy or similar laws).
    • Third Party Products. With respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Products.
    • Feedback. If Client provides any communications or materials to Service Provider suggesting or recommending changes to the Service Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Service Provider is free to use such Feedback. Client hereby assigns to Service Provider on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, the Feedback, for any purpose whatsoever.
  7. Limited Warranty and Warranty Disclaimer.
    • As may be set forth in Order Forms from time to time, Service Provider warrants that (i) the Service Provider Products will conform in all material respects to any specifications set forth in the Documentation when accessed and used in accordance with the applicable Documentation. Service Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically stated in writing.
    • EXCEPT FOR ANY APPLICABLE WARRANTY SET FORTH IN SECTION 8(a), THE PROVIDER PRODUCTS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR ANY APPLICABLE LIMITED WARRANTY SET FORTH IN SECTION 8(a), SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE DEVELOPED WORKS, OR ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE ACCURATE, COMPLETE, OR ERROR FREE.
  8. Indemnification.
    • Client Indemnification. Client shall indemnify, hold harmless, and, at Service Provider’s option, defend Service Provider from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third-party’s US intellectual property rights and to the extent that any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Service Provider Products in a manner not authorized by this Agreement; (iii) use of the Service Provider Products in combination with data, software, hardware, equipment, or technology not provided by Service Provider or authorized by Service Provider in writing; or (iv) modifications to the Service Provider Products not made by Service Provider, provided that Service Provider promptly notifies Client in writing of the claim, and cooperates with Client. Client may not settle any Third-Party Claim against Service Provider unless Service Provider consents to such settlement, such consent not to be unreasonably withheld, and further provided that if, after written notification, Client fails to defend such claim, Service Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice at its own expense.
    • Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND SERVICE PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PROVIDER PRODUCTS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  9. Limitations of Liability. IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR INDEMNIFICATION AND BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE SIX MONTH PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  10. Term and Termination.
    • Term. The term of this Agreement is as set forth in the Order Form (the “Term”).
    • Termination. In addition to any other express termination right set forth in this Agreement:
      • Service Prpvider may terminate this Agreement, effective on ninety (90) calendar days prior written notice to Client;
      • either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured fifteen (15) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      • either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Service Provider shall immediately discontinue use of Client IP, and Client shall immediately discontinue use of the Service Provider IP. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
    • Survival. This Section 11(d) and Sections 1,5, 6, 7, 8(b), 9, 10 and survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement unless expressly stated otherwise.
  11. Miscellaneous.
    • Entire Agreement. This Agreement and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier for next day delivery (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only immediately upon personal delivery, the next day if delivered via overnight courier and immediately if deliver via facsimile or email and if the Party giving the Notice has complied with the requirements of this Section.
    • Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority (each a “Force Majeure Event”).
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
    • In consideration of the promises in this Agreement, the Parties agree that any and all controversies, claims, or disputes arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration under the arbitration rules (the “rules”) of, and pursuant to the state law of, the state of Delaware, including the Delaware code of civil procedure.  The Federal Arbitration Act shall continue to apply with full force and effect notwithstanding the application of procedural rules set forth in the Delaware code of civil procedure. Disputes which the Parties agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or federal law. (b) The Parties agree that any arbitration will be administered by JAMS (“JAMS”) and that the neutral arbitrator will be selected in a manner consistent with its national rules for the resolution of contract disputes. The Parties agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. The Parties also agree that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. The Parties understand that they shall share equally any administrative or hearing fees charged by the arbitrator or JAMS. The Parties agree that the arbitrator shall administer and conduct any arbitration in a manner consistent with the rules and that to the extent that the JAMS’ national rules for the resolution of contract disputes conflict with the rules, the rules shall take precedence. The Parties agree that the decision of the arbitrator shall be in writing as a reasoned award. (c) Except as provided by the JAMS rules and this agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between the Parties. Accordingly, except as provided for by the rules and this agreement, neither Party will be permitted to pursue court action regarding claims that are subject to arbitration, provided however either Party may seek emergency relief in court, including a temporary restraining order or preliminary injunction, for breach of confidentiality or infringement of its intellectual property.
    • Assignment. Neither Client or Service Provider may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • Export Regulation. Both Service Provider and Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the US.
    • Equitable Relief. Each Party acknowledges and agrees that infringement of the other Party’s Intellectual Property or a breach or threatened breach by such Party of any of its obligations under Section 5, Section 6 or, in the case of Client, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

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