Please read this End-User License Agreement (“Agreement”) carefully before clicking the “I Agree” button, downloading or using our Software Products. By clicking the “I Agree” button, downloading, installing or using our Software Products, you are agreeing to be bound by the terms and conditions of this Agreement. If you do not agree to the terms of this Agreement, do not click on the “I Agree” button and do not download or otherwise install or use our Software Products.

IMPORTANT: LICENSOR PROVIDES LICENSED SOFTWARE TO LICENSEE UNDER THIS AGREEMENT. THIS AGREEMENT GOVERNS LICENSEE’S DOWNLOAD, INSTALLATION AND USE OF THE VERSION OF THE LICENSED SOFTWARE IDENTIFIED IN THE APPLICABLE CUSTOMER ORDER, OR IF NOT ACQUIRED VIA A CUSTOMER ORDER, LICENSEE’S DOWNLOAD, INSTALLATION OR USE OF THE LICENSED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE DIFFERENT FROM THE AGREEMENT(S) THAT ACCOMPANIED EARLIER RELEASES OF THE LICENSED SOFTWARE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING, AS IT MAY CONTAIN ADDITIONAL RESTRICTIONS ON YOUR USE OF THE SOFTWARE. THIS AGREEMENT SUPERSEDES AND CONTROLS OVER ANY OTHER TERMS PROVIDED TO LICENSEE REGARDING LICENSEE’S USE OF THE LICENSED SOFTWARE, WHETHER WRITTEN OR ORAL, AS PART OF A SIGNED AGREEMENT, A CLICK-WRAP AGREEMENT PROVIDED WITH THE LICENSED SOFTWARE OR OTHERWISE (SUCH TERMS REFERRED TO AS THE “OTHER AGREEMENT”), EVEN IF SUCH OTHER AGREEMENT WAS EMBEDDED WITHIN PREVIOUSLY LICENSED SOFTWARE.

THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE DIFFERENT FROM THE AGREEMENT(S) THAT ACCOMPANIED EARLIER RELEASES OF THE LICENSED SOFTWARE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING, AS IT MAY CONTAIN ADDITIONAL RESTRICTIONS ON YOUR USE OF THE SOFTWARE. THIS AGREEMENT SUPERSEDES AND CONTROLS OVER ANY OTHER TERMS PROVIDED TO LICENSEE REGARDING LICENSEE’S USE OF THE LICENSED SOFTWARE, WHETHER WRITTEN OR ORAL, AS PART OF A SIGNED AGREEMENT, A CLICK-WRAP AGREEMENT PROVIDED WITH THE LICENSED SOFTWARE OR OTHERWISE (SUCH TERMS REFERRED TO AS THE “OTHER AGREEMENT”), EVEN IF SUCH OTHER AGREEMENT WAS EMBEDDED WITHIN PREVIOUSLY LICENSED SOFTWARE.

LICENSOR RESERVES THE RIGHT TO UPDATE, AMEND, AND/OR MODIFY THIS AGREEMENT FROM TIME TO TIME, AND MAY INCLUDE SUCH UPDATED AGREEMENT WITH OR EMBEDDED IN FUTURE VERSIONS OF THE LICENSED SOFTWARE. ENTERING INTO THIS AGREEMENT DOES NOT CONSTITUTE A SALES TRANSACTION. THE SALE OF A LICENSE TO SOFTWARE PRODUCTS TAKES PLACE UNDER CUSTOMER ORDERS WHICH (UNLESS OTHERWISE STATED IN THE CUSTOMER ORDER) INCORPORATE THE TERMS OF THIS AGREEMENT.

 
1. DEFINITIONS

Capitalized terms in this Agreement are defined as follows:

“Additional License Terms” or “ALT” means the additional specific software license terms that govern the authorized use of a given Licensed Product and License Types available for that Licensed Product, along with additional terms or conditions applicable to a given License Type, all of which are made a part of this Agreement. The applicable Additional License Terms for the Licensed Software is either attached to the Customer Order or can be found at: www.rapiddox.com by product name and version; all references in this Agreement to “Additional License Terms” or “ALT” shall refer to the ALT that corresponds to the version of the Licensed Software.

“Background Intellectual Property Rights” means all Intellectual Property Rights owned, controlled, or licensed by a party in its Background Technology.

“Background Technology” means all Technology owned, controlled or licensed by either party: (i) developed, conceived, authored, obtained, licensed or acquired prior to the Effective Date of this Agreement; or (ii) developed, conceived, authored, obtained, licensed or acquired independently of the activities carried out under this Agreement without the use of the other party’s Background Technology.

“Customer Order” means an agreement between Licensor and Licensee that consists of a document that has been (i) submitted by Licensee describing the License Type(s) to be purchased for the Licensed Software, and (ii) accepted by Licensor (a) in writing, (b) electronically through Licensor’s website at www.rapiddox.com or (c) by delivering the Licensed Software to Licensee, whichever occurs first. A Customer Order may also consist of a written quote, or other written document issued by Licensor (the “Quote”), (i) describing the License Types for the Licensed Software to be purchased, and (ii) that is accepted by Licensee before the Quote expires either by (a) returning the Quote signed by an authorized representative of Licensee, (b) issuing a purchase order that references the Quote (if the Quote expressly allows acceptance in this manner), or (c) paying Licensor the fees listed in the Quote. Unless otherwise expressly set forth in the relevant Customer Order, each Customer Order incorporates the terms and conditions of this Agreement, and in no event will any different or additional terms of a purchase order or similar document issued by Licensee in connection with this Agreement or a Customer Order apply, and any such additional or different terms are hereby rejected by the Licensor. For purposes of this paragraph, “Licensor” shall also include authorized distributors and resellers of Licensor. Any conflicting or additional terms in a Customer Order accepted by an authorized distributor or reseller of Licensor shall have no effect unless such terms have been agreed to by Factual Soft Company LLC in writing.

“Documentation” means the user documentation that Licensor makes available for the Licensed Software in electronic form or paper form.
“Intellectual Property Rights” means all intellectual property rights worldwide arising under statutory or common law, including without limitation copyrights, patent rights, trade secret rights or any analogous right in foreign jurisdictions, but excluding, for purposes of this Agreement, trademarks, trade names, service marks, trade dress, or other forms of corporate or product identification whether or not recognized.

“Licensee” means the legal entity or individual that is identified in the applicable Customer Order, who downloaded or installed our Software Product(s) following a purchase from Licensor or its authorized resellers or distributors or who has otherwise lawfully received a license to the Licensed Product.

“License Type” means the type of license available for a given software product (such as a named user license, concurrent user license or server license). In addition to the ALT, a License Type may be set forth in a Customer Order or an agreement executed in writing by Licensee and Licensor.

“Licensed Patent Claims” means the claims of Licensor’s patents that are necessarily and directly infringed by the reproduction and distribution of the Licensed Software when that Licensed Software is in its unmodified form as delivered by Licensor to Licensee and not modified or combined with anything else.

“Licensed Product” means the Licensed Software and Documentation.

“Licensor” means Factual Soft Company LLC and its affiliates who own the intellectual property rights in Licensed Product.

“Licensed Software” means the executable version of Licensor’s software, including RapidDox™, as listed in the Customer Order or otherwise provided to or rightfully acquired by Licensee. This Agreement shall govern the use of any update to the Licensed Software that Licensee receives pursuant to a purchased support and maintenance plan as described in Section 4 below, unless such update contains, comes with, or is otherwise specifically governed by a different end-user license agreement.

“Third Party Component” means any run time or other elements owned or licensed to Licensor by a third party (other than open-source code or elements) which may be embedded in the Licensed Software.

“Third Party Software” means additional or accompanying software owned or licensed by a third party, but not any open source code or elements) that may be specified in the Documentation or in a file accompanying such Licensed Software.

“Warranty Period” means the thirty (30) day time frame beginning on the date of delivery of the Licensed Software to Licensee (Licensed Software delivery is deemed to occur when the Licensed Software is physically delivered to Licensee EXWORKS or made available for download to Licensee).

2. GRANT OF LICENSE; LICENSE CONDITIONS. 

A. License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement (including but not limited to the payment of applicable fees), Licensor grants to Licensee a personal, non-transferable, non-sublicensable, non-exclusive limited license, under Licensor’s copyrights and Licensed Patent Claims, to use and copy the Licensed Software as authorized by the License Type(s) specified in the ALT solely for Licensee’s internal business operations, functions and benefit, and not for commercialization of the Licensed Software or to provide services or benefit to any affiliates or subsidiaries of Licensee or any other third party. Except as expressly set forth above, Licensee acknowledges that it is not obtaining any rights to use or distribute any Licensed Product any other Licensor Intellectual Property Rights. Except as explicitly stated in the Agreement, nothing shall constitute a grant by Licensor of any license or other right (whether express or implied) to any of Licensor’s technology, including Background Technology, or Intellectual Property Rights. All rights not expressly granted hereunder are reserved by Licensor.
B. Third Parties. Except as expressly permitted under this Section, Licensee will not allow the Licensed Product to be accessed or used by third parties or anyone other than Licensee employees whose duties require access or use. Notwithstanding the foregoing, Licensee’s authorized consultants and subcontractors may access the Licensed Product where the access is incidental to their performing services on Licensee’s behalf consistent with the license rights granted to Licensee under this Agreement, provided: (i) Licensee binds those consultants and subcontractors to the confidentiality and other obligations imposed on Licensee under this Agreement and (ii) Licensee shall remain fully liable to Licensor for the actions and inaction of those consultants and subcontractors.

C. Distribution Bundles/Suites. If the Licensed Software is licensed in a bundle or suite of multiple products, and the applicable Customer Order specifies the License Type and license count for the bundle or suite (but not the individual product components of the bundle or suite), then each product in the bundle or suite shall share such license type and count. For example, individual products in the bundle or suite cannot be used by multiple users if only one user license is purchased (for user-based licenses) and cannot be installed on multiple devices or servers if only one device or server license is purchased (for a device or server-based licenses).

 
3. EVALUATION LICENSES.

With respect to any Licensed Software provided to Licensee solely for evaluation purposes (an “Evaluation License”), in the event of conflict, this Section 3 shall prevail over any other provisions set forth in this Agreement. An Evaluation License may be used for a period of no more than thirty (30) days from the date the Licensed Software is provided to Licensee (“Evaluation Term”), unless a different period is specified in writing by Licensor. An Evaluation License may be used solely for Licensee’s internal evaluation and testing purposes on a single computer system and not for development, commercial, or production purposes. For Licensed Software subject to an Evaluation License, (a) Licensee may not reproduce or distribute the Licensed Products; and (b) Licensee’s results of benchmark or other performance tests run on or using the Licensed Software may not be disclosed to any third party without Licensor’s prior written consent. At any time during the Evaluation Term or upon completion thereof, Licensee may, upon written notification to the Licensor and payment of the applicable license fee, replace the Evaluation License with a license to use the Licensed Software that is not restricted to evaluation purposes. In the absence of such notification by Licensee, the Evaluation License shall automatically terminate at the end of the Evaluation Term, and Licensee shall return, or, if Licensor so directs, delete and destroy all such Licensed Software and provide Licensor with written confirmation of its compliance with this provision. Upon written request from Licensee, Licensor may, in its sole discretion, grant Licensee an extension in writing prior to the expiration of the Evaluation Term. Other than updates to Licensed Software provided as part of support and maintenance, Licensed Software provided by Licensor free of license fee charge shall be deemed to be provided for evaluation purposes only. Licensed Software furnished under an Evaluation License is provided without any contractual obligation of maintenance and support by Licensor and is provided “as is” without warranties, implied or express, of any kind.

 
4. OWNERSHIP

The Licensed Products are provided under license, and not sold, to Licensee. The only rights in the Licensed Products are the licenses expressly stated in this Agreement and no other rights are implied or granted by estoppel. Licensor (and its affiliates) and its and their licensors and third party suppliers retain ownership of, and reserve all rights in and to, the Licensed Products, including all copies thereof, and all intellectual property rights arising out of or relating to the Licensed Products.
5. SECURITY

Throughout the license term, Licensee agrees to: (i) implement internal safeguards to prevent any unauthorized copying, distribution, installation, use of, or access to, the Licensed Products and associated support and maintenance or any other breach of this Agreement; and (ii) take all necessary steps to destroy or erase all Licensed Software codes, programs, Documentation, and other proprietary information of Licensor before disposing of any media or hardware. Licensor will provide any license key necessary for activation and use of the Licensed Software. Licensor is not liable or responsible for lost or broken license keys and is not obligated to replace license keys or issue new license keys unless (1) Licensee has purchased a support and maintenance plan for the applicable Licensed Software that specifically covers the issuance of new or replacement keys and (2) the applicable version of the Licensed Software is then generally available for distribution by Licensor. If Licensee has not paid for such a support and maintenance plan, replacement or new license keys may be available for purchase at Licensor’s then-current list price for applicable new licenses.

 
5. USE RESTRICTIONS.

Except as may be otherwise specifically permitted in the applicable ALT, Licensee agrees not to, directly or indirectly:

(a) Copy, distribute or use the Licensed Software, in whole or in part (such as any portion, feature, function, or user interface) without paying Licensor the applicable fees;

(b) Use the Licensed Software as a service, or for timesharing, facilities management, outsourcing, hosting, service bureau use, or for providing other application service (ASP) or data processing services to third parties or for like purposes, or permit the use of the Licensed Software by a third party or permit access by or use for the benefit of any third party without executing a separate distribution agreement for the Licensed Software and paying Licensor the applicable required additional fees;

(c) Modify or create derivative works of the Licensed Software, or decrypt, translate, disassemble, recompile, decompile or reverse engineer the Licensed Software or attempt to do so (except to the extent applicable law specifically permits such activity, in which case Licensee must provide Licensor with detailed information regarding such activities);

(d) Alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within the Licensed Software;

(e) Use the Licensed Software in a manner other than as specifically permitted in this Agreement or an ALT;

(f) Assign, sell, resell, license, rent, lease, lend, sublicense, outsource or otherwise transfer the Licensed Software to any third party, without first paying Licensor the applicable required license fees and obtaining Licensor’s prior written consent;

(g) Authorize, allow or appoint any third party to do any of the foregoing. For the avoidance of doubt, third parties include, without limitation, contractors and consultants (including contractors and consultants retained to provide services solely for the benefit of Licensee), outsourcers, Licensee’s affiliates and subsidiaries, parent companies, customers, and the public; or

(h) Publish or disclose to third parties any evaluation or benchmarking of the Licensed Software without Licensor’s prior written consent.

(i) combine the Licensed Software with other items or to use any such combination.

Notwithstanding the foregoing, Licensee may: (i) make a reasonable number of archival back-up copies of the Licensed Software and (ii) make a reasonable number of copies of the Documentation. Licensee shall reproduce all copyright and other proprietary rights notices appearing in or on the Licensed Products, including notices of all third party suppliers.

 
6. TERM OF LICENSE; TERMINATION.

This Agreement and the license term for the Licensed Software granted herein is perpetual, unless a subscription/term license has been purchased by Licensee (in which case the license term shall be set forth in the Customer Order or ALT), and is subject to earlier termination as provided in this Section 3. If Licensee has purchased a subscription/term license, such license shall automatically terminate upon the expiry of such subscription/term, unless earlier terminated under this Section 3.

Licensor may terminate this Agreement, along with any or all licenses then in effect with Licensee, immediately by giving Licensee written notice of termination in the event that (i) Licensee breaches any term or condition of this Agreement and fails to remedy such breach within ten (10) days of receipt of Licensor’s notice detailing such breach; (ii) Licensee becomes insolvent, has a receiver appointed, or files for or has filed against it, liquidation, bankruptcy or analogous proceedings; or (iii) Licensee infringes or misappropriates the intellectual property rights of Licensor. Termination shall be without prejudice to any other rights or remedies Licensor may have. In the event of any termination, Licensee’s license(s) to install, access or use the Licensed Software will immediately terminate, and Licensee shall destroy and erase all copies of such Licensed Software in its possession or control and provide written certification to Licensor that it has complied with this provision. Early termination of this Agreement shall not entitle Licensee to any refund or reimbursement of any previously paid fees. The rights and obligations of the parties contained in Sections 3 (Term of License), 5 (Disclaimer of Warranty), 6 (Limitation of Liability), 7 (Ownership), 8 (Third Party Software and Components), 9 (Notice to U.S. Government End Users), 10 (License Fees and Payment Terms), 11 (Audits), 13 (Privacy and Use of Licensee Information),14 (Licensee Trademark and Feedback) and 15 (Miscellaneous) will survive the termination or expiration of this Agreement.

 
7. SUPPORT AND MAINTENANCE.

Licensee is not entitled to any updates to the Licensed Software unless Licensee purchases maintenance and support services (via email or web-based) pursuant to Licensor’s then-current applicable standard rates, which can be found at https://www.rapiddox.com or can be provided by Licensor at Licensee’s request. Licensor will make commercially reasonable efforts to solve or bypass reported errors for the Licensed Software and may provide temporary fixes, procedures or routines for such errors until a permanent solution is made available. Maintenance and support services (including, but not limited to, any new versions, bug fixes, and patches) provided by Licensor will be subject to payment of applicable fees. Where Licensee purchases maintenance and support for any Licensed Software, Licensee hereby agrees to purchase or keep current on such maintenance and support services for all of Licensee’s licensed units of such Licensed Software product, regardless of License Type. Licensor is not obligated to provide maintenance and support services in the following situations: (a) the Licensed Software has been changed, modified, or damaged (except if under the direct supervision of Licensor); (b) the error is caused by Licensee’s or user’s negligence, hardware malfunction or other causes beyond the reasonable control of Licensor; (c) the error is caused by third-party software not licensed or obtained through Licensor, or (d) Licensee failed to pay fees due to Licensor hereunder.

 
8. MALCIOUS CODE.

Licensor will use reasonable efforts to ensure that the Licensed Software shall not contain: (a) any virus, trojan horse, worm, backdoor or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (b) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of an individual other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.

 
9. DISCLAIMER OF WARRANTY.

EXCEPT AS SET FORTH HEREIN, THE LICENSED PRODUCTS ARE PROVIDED TO LICENSEE “AS-IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT OPERATION WILL BE UNINTERRUPTED, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE, OR WORK IN COMBINATION WITH ANY OTHER SOFTWARE, APPLICATIONS, OR SYSTEMS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE ARE EXPRESSLY DISCLAIMED BY LICENSOR AND ITS THIRD-PARTY SUPPLIERS AND AFFILIATES. LICENSEE ACKNOWLEDGES THAT LICENSEE IS RESPONSIBLE FOR THE SELECTION OF THE LICENSED SOFTWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS AND FOR THE INSTALLATION AND/OR USE OF, AND RESULTS OBTAINED FROM THE LICENSED SOFTWARE.

 
10. LIMITATION OF LIABILITY.

A. Aggregate Cap. IN NO EVENT SHALL ANY LIABILITY OF LICENSOR OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY LICENSEE FOR THE LICENSED SOFTWARE AND THE INITIAL PERIOD OF MAINTENANCE AND SUPPORT GIVING RISE TO THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT; THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THE LIMIT.
B. Waiver of Consequential Damages IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES, LOSS OF PROFITS, BUSINESS, DATA, OR PROGRAMS (INCLUDING, BUT NOT LIMITED TO, THE COST OF RECOVERING OR REPLACING SUCH DATA OR PROGRAMS), LOSS, DAMAGE OR ANY COSTS DUE TO INTERRUPTION, DELAY, OR INABILITY TO USE THE LICENSED SOFTWARE, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

C. Scope. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION 10 APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. THESE LIMITATIONS AND EXCLUSIONS APPLY COLLECTIVELY TO LICENSOR,ITS PARENTS, AFFILIATES, AND SUBSIDIARIES AND EACH OF THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AND SUPPLIERS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 10 EXCLUDES LIABILITY FOR WILLFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION.

D. Exclusive Remedy. LICENSEE’S REMEDIES IN THIS AGREEMENT ARE LICENSEE’S EXCLUSIVE REMEDIES. LICENSEE AGREES THAT, IN ENTERING INTO THIS AGREEMENT, IT DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OTHER THAN THOSE EXPRESSLY SET OUT IN THIS AGREEMENT.

E. Essential Purpose. LICENSEE FURTHER ACKNOWLEDGES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 10 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT, IN THE ABSENCE OF SUCH LIMITATIONS AND EXCLUSIONS, THE PRICING AND OTHER TERMS AND CONDITIONS SET FORTH HEREIN WOULD BE SUBSTANTIALLY DIFFERENT. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 6 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

F. Free Software. IF LICENSOR PROVIDES LICENSEE WITH ANY LICENSED SOFTWARE FREE-OF-CHARGE OR UNDER AN EVALUATION LICENSE, TO THE EXTENT PERMITTED BY LAW, LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY KIND TO LICENSEE, ITS CUSTOMERS, OR ANY THIRD PARTIES CAUSED BY THE LICENSED SOFTWARE THAT IT MAKES AVAILABLE TO LICENSEE, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NELIGENCE OR WILLFUL MISCONDUCT OF LICENSOR.

G. Basis of Bargain. The limitation of liability set forth in this Section 10 is a fundamental basis of this Agreement; and each Party understands and agrees that the other would not have entered into this Agreement without the limitation of liability.

 
11. INDEMNITY

A. By Licensor. Licensor will defend, at its own expense, any legal action brought against Licensee to the extent that it is based on an Infringement Claim, which is any claim or allegation that the Licensed Software, in the form delivered to Licensee, directly infringes a U.S. patent or copyright or constitutes a misappropriation of trade secrets of any third party. Licensor will pay any costs and damages finally awarded against Licensee in any Infringement Claim that are attributable to the Infringement Claim or that Licensee incurs through settlement of the Infringement Claim, but will not be responsible for any compromise that Licensee makes or expense that Licensee incurs without Licensor’s written consent. The defense and payments are subject to the condition that Licensee: (i) gives Licensor prompt written notice of the Infringement Claim; (ii) allows Licensor to direct the defense and settlement of the Infringement Claim; and (iii) cooperates with Licensor in the defense and settlement of the Infringement Claim. This indemnity is personal to Licensee and will under no circumstances be assignable, transferable or subject to pass-through to Licensee Customers or indirect customers. Licensee will notify Customers that they must look solely to Licensee in connection with any Infringement Claim.

B. Licensor Options. If the Licensed Software, or the operation of the Licensed Software, becomes or, in Licensor’s opinion, is likely to become, the subject of an Infringement Claim, Licensor may, at Licensor’s option and expense, procure for Licensee the right to continue using the Licensed Software, replace or modify the Licensed Software so that it becomes non-infringing, or terminate the license granted under this Agreement for the Licensed Software and refund to Licensee unused fees Licensee paid to Licensor (less a reasonable charge for the period during which Licensee has had availability of the Licensed Software for use, and of Support).

C. Exclusions. Licensor will have no liability for any Infringement Claim to the extent it:
(i) results or arises from Licensee’s failure to use an updated version of the Licensed Software; (ii) is based on the combination or use of the Licensed Software with any other software, program or device that Licensor did not provide if the Infringement Claim would not have arisen but for the use or combination; (iii) results from Licensor’s compliance with designs, plans or specifications furnished by Licensee; (iv) is based on any products, devices, software or applications designed or developed through use of the Licensed Software; or (v) results or arises from Licensee’s breach of any provision of this Agreement.

The foregoing states Licensor’s entire liability and Licensee’s exclusive remedy for any proprietary rights infringement.

D. By Licensee. Licensee will defend, at Licensee’s own expense, any legal action brought against Licensor to the extent that it is based on an Indemnified Claim, which is any of the following claims or allegations: (i) claims arising from or relating to Licensee’s breach of any provision of this Agreement including, but not limited to, a breach of the license grants and restrictions herein; or (ii) claims resulting from Licensor’s compliance with designs, plans or specifications that Licensee furnished. Licensee will pay any costs and damages finally awarded against Licensor that are attributable to any Indemnified Claim or that Licensor incurs through settlement of an Indemnified Claim, but will not be responsible for any compromise that Licensor makes or expense that Licensor incurs without Licensee’s consent. The defense and payments are subject to the condition that Licensor gives Licensee prompt written notice of the Indemnified Claim, allows Licensee to direct the defense and settlement of the Indemnified Claim, and cooperates with Licensee as necessary for defense and settlement of the Indemnified Claim.

 
12. CONFIDENTIALITY

Licensee shall use reasonable efforts to safeguard the Licensed Products (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if it becomes aware of any infringement or misappropriation of the Licensed Products and shall fully cooperate with Licensor, at Licensor’s expense, in any legal action taken by Licensor to enforce its intellectual property rights. Licensee acknowledges that it may obtain proprietary and confidential information relating to the Licensed Products, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information and other technical, business, product, and data (collectively “Confidential Information”). Licensee shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the Licensed Products as licensed under this EULA. Licensee further agrees that a breach of this provision will cause irreparable harm to Licensor for which it will have no adequate remedy at law, and therefore it shall be entitled to obtain injunctive relief to restrain Licensee’s violations of this confidentiality obligation, in addition to any other remedies Licensor may have at law or equity.

 
13. THIRD-PARTY SOFTWARE AND COMPONENTS.

The Licensed Software may come with or require Third-Party Software that Licensee shall license directly from the third party licensor pursuant to such third party’s terms and conditions and not this Agreement. Additionally, some Licensed Software may include certain Third Party Components and open-source software. Such open-source software and Third Party Components may also be loaded on the Licensed Software media. Third-Party Components are licensed to Licensee under this Agreement; open-source software is licensed pursuant to the applicable open source license. To the extent applicable, information about the open-source software may be found (i) in a file accompanying the applicable Licensed Software, or (ii) in the Documentation or ALT. With respect to open source software, nothing in this Agreement limits any rights under, or grants rights that supersede, the terms of the applicable open source license. Licensee will not subject the Licensed Software in whole or in part, to any license obligations associated with open source software, including combining the Licensed Software with open source software in a manner that subjects Licensor, or any portion of the Licensed Software, to any license obligations of the open source license. Licensee shall not directly access any Third Party Components other than with or as part of the Licensed Software. Licensee agrees that to the extent required by a third party licensor or supplier of a Third Party Component, that third party licensor or supplier is an intended third-party beneficiary of this Agreement as necessary to protect intellectual property rights in the Licensed Software and limit certain uses thereof.

 
14. NOTICE TO U.S. GOVERNMENT END USERS.

The Licensed Products are deemed to be “Commercial Items,” as defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with such sections, the Licensed Products are licensed to U.S. Government end users (i) only as Commercial Items, and (ii) with only those rights as are granted pursuant to this Agreement.

 
15. LICENSE FEES AND PAYMENT TERMS.
Unless the applicable license fee has been prepaid in full for a perpetual license to the Licensed Product, Licensee agrees to pay the applicable license fees for the Licensed Products within thirty (30) days of the date of invoice. Licensed Software license fees are noncancellable and non-refundable, except as provided in Section __ above, and shall be paid without any deduction, abatement, set-off, claim, adjustment, reductions or tax withholding. Software License fees are exclusive of any applicable transportation charges, sales, use, value-added tax, and other applicable taxes and duties, and all such amounts shall be paid or reimbursed by Licensee. Licensee shall be liable for all outstanding past due amounts, which shall accrue interest at the rate of 1.0% per month compounded or, if lower, the maximum rate allowed by applicable law, and any collection costs associated with the collection of any past due amounts, including fees and disbursements of legal counsel and court costs. In cases other than taxes referred to above, including, but not limited to, sales and use taxes, stamp taxes, value added taxes, property taxes and other taxes or duties imposed by any taxing authority on or with respect to this Agreement, Licensee will bear the costs of those taxes or duties. If those taxes or duties are legally imposed initially on Licensor or Licensor is later assessed by any taxing authority, then Licensee will promptly reimburse Licensor for those taxes or duties plus any interest and penalties that Licensor suffers.

 
16. AUDITS/RECORDS.

A. Compliance Audits. Licensor or an Auditor (as defined below) has the right to verify Licensee’s compliance with the licenses issued under Customer Orders, the applicable ALTs, and this Agreement. Licensee agrees to:

(i) Recordkeeping. Keep, and upon Licensor’s request, provide records, sufficient to certify Licensee’s compliance with this Agreement based on the applicable License Type(s) (including applicable license metric and other terms and conditions) for the Licensed Software, which may include but are not limited to, serial numbers, license keys, logs, the location, model (including quantity and type of processor) and serial number of all machines on which the Licensed Software is installed or accessed or from which the Licensed Software can be accessed, the names (including a corporate entity) and number of users accessing or otherwise able to access the Licensed Software, metrics, reports, copies of the Licensed Software (by product and version), and network architecture diagrams as they may relate to Licensee’s licensing and deployment of the Licensed Products and associated support and maintenance;

(ii) Questionnaire. Within seven (7) days of Licensor’s request, Licensee shall furnish to Licensor or its designated independent auditor (“Auditor”) a completed questionnaire provided by Licensor or Auditor, accompanied with a written statement signed by a director of Licensee certifying the accuracy of the information provided; and

(iii) Access. Provide representatives of Licensor or Auditor any necessary assistance and access to records and computers to allow an inspection and audit of Licensee’s computers and records, during Licensee’s normal business hours, for compliance with licenses, the applicable ALTs, and this Agreement, and fully cooperate with such audit.
(iv) Non-Compliance. In the event that Licensee has, or at any time has had, unlicensed installation, use of, or access to the Licensed Software or has otherwise breached this Agreement or an ALT (a “Non-Compliance”), without prejudice to any other rights or remedies Licensor may have, including, without limitation, injunctive relief, Licensee shall, within thirty (30) days’ notice of such Non-Compliance to Licensee, purchase sufficient licenses and/or subscriptions and associated support and maintenance to cure the Non-Compliance, by paying Licensor’s current (as of the date of such additional purchase) list license fees and 12-month support and maintenance fees to Licensor for such additional licenses, plus Licensor’s current (as of the date of such additional purchase) list term license and support and maintenance fees and interest (compounded at 1.0% monthly or the maximum rate permitted by applicable law if lower) for such additional licenses for the time period from the commencement of the Non-Compliance until payment of the aforementioned fees, with interest payable even if an invoice was not issued at the time the Non-Compliance occurred. For purposes of the foregoing, “list” shall mean Licensor’s full list price as set forth in Licensor’s standard price list that is current as of the commencement of the audit without any volume or other discount. If Licensee’s Non-Compliance results in an underpayment of license fees of 5% or greater, Licensee shall also reimburse Licensor for the reasonable cost of such audit in addition to other amounts due. In the event of a dispute related to Non-Compliance, the Licensor shall have the right to collect from Licensee its reasonable costs and attorneys’ fees incurred in enforcing this Agreement.

 
17. RELATED SERVICES.

Licensee shall be responsible for obtaining and installing all proper hardware and other third-party support software (including operating systems) for the proper installation and implementation of the Licensed Software. In the event that Licensee retains Licensor to perform any services with respect to the Licensed Software (for example: installation, implementation, maintenance, consulting, or training services), Licensee and Licensor agree that such services shall be provided at Licensor’s then-current standard terms, conditions, and rates for such services unless otherwise agreed in writing by Licensor.

 
18. PRIVACY AND USE OF LICENSEE INFORMATION.

A. Responsibility and Compliance with Laws. Licensee is solely responsible for and assumes all liability with respect to its own collection, processing, storage, and transfer of any user data, including, but not limited to, personally identifiable information and personal health and financial information (collectively, “Personal Information”). Licensee shall be solely responsible for notifying its users of proper use of such data. Each party is responsible for complying with its respective obligations under all applicable laws, regulations, and industry standards regarding data collection and data privacy applicable for the use of the Licensed Software by the relevant party.

Licensee shall not provide any Personal Information to Licensor for processing by Licensor on behalf of Licensee unless otherwise agreed by the parties in writing in an applicable transaction document with applicable privacy terms. If the parties agree that processing Personal Information is necessary for the performance of this specific transaction, and when such Personal Information processing falls within the scope of the General Data Protection Regulation (EU) 2016/679 (“GDPR”), before any Personal Information is made available to Licensor, the parties agree that Licensee will be the data controller and Licensor will be the data processor, and when Licensor is processing Personal Information on behalf of Licensee, such processing shall be governed by terms that comply with Article 28 of the GDPR including standard contractual clauses to be included in such transaction document.

Licensor will not have access to protected health information unless the parties have an executed business associate agreement in place for this transaction. Licensee is solely responsible for assessing the Licensed Product or any related product or service for compliance with any industry requirements applicable to Licensee.

B. Consent to Use of Licensee Information. To the extent required or permitted by law, Licensee hereby expressly consents to (i) receiving information from Licensor from time to time advertising Licensor’s products; (ii) the use of Licensee’s name in Licensor customer lists, promotional materials, and press releases; and (iii) the collection and use of information about the computer system on which the Licensed Software is installed (e.g., product version, serial number) for internal security and licensing purposes. Further information about the Licensor’s processing of personally identifiable data is available at http://www.rapiddox/privacy (click “Privacy Policy” tab) or can be provided by Licensor at Licensee’s request.

C. Other Use of Licensee Information. To the extent required or permitted by law, and notwithstanding the terms in Section 13.A, Licensor may also process personally identifiable information of Licensee and Licensee’s users (i) in order to comply with a legal obligation to which Licensor is subject; (ii) as is necessary for the performance of this Agreement; and (iii) where necessary for the purposes of Licensor’s legitimate interests, except where such interests are overridden by the interests or fundamental rights and freedoms of the Licensee or Licensee’s users which require protection of personally identifiable information.

 
19. LICENSEE TRADEMARK AND FEEDBACK.

Licensor may use Licensee’s name and logo for business development and marketing purposes, including, but not limited to, online and printed sales and marketing materials. Any other use of Licensee’s name or logo, or a description of Licensee’s use of the Licensed Software, shall be subject to Licensee’s prior consent. Any suggestions, ideas for modifications, enhancements, and other feedback from Licensee regarding the Licensed Software provided at any time (collectively, the “Feedback”), including (but not limited to) all intellectual property rights in and to such Feedback, shall be owned exclusively by Licensor. Licensee hereby assigns all right, title, and interest in and to such Feedback and all the intellectual property rights therein to Licensor, without the necessity of any further consideration. To the extent any Feedback cannot be assigned to Licensor, Licensee hereby grants to Licensor a perpetual, irrevocable, exclusive, worldwide, royalty-free, fully paid up license, with the right to sublicense through multiple tiers to use, make, sell, distribute, execute, adapt, translate, reproduce, display, perform, modify, create derivative works of and otherwise exploit the Feedback in any manner.

 
20. MISCELLANEOUS.

A. Assignment. Licensor may assign this Agreement, including any rights or obligations under the Agreement (in whole or in part) to a parent or an affiliate. Licensee may not assign or transfer this Agreement or any of its rights or duties hereunder, including (but not limited to) by merger, acquisition by any entity of all or substantially all of Licensee’s stock or assets, change of control, operation of law, or otherwise, without the prior written consent of Licensor and payment by Licensee of the applicable assignment fee. Any attempted assignment not in accordance with this Section 20A. shall be null and void.

B. Governing Law. The laws of the State of Texas govern this Agreement and the licenses granted hereunder, and the parties hereto consent to the exclusive jurisdiction of the state and federal courts of the Dallas County in the State of Texas in any action based on this Agreement or the Licensed Software hereunder or any License Type under an ALT. Each party waives any right it may have to object to such venue, including objections based on personal jurisdiction or forum non-convenience (inconvenient forum). The parties agree that the Uniform Computer Information Transaction Act or any version thereof, adopted by any state, in any form (“UCITA”), shall not apply to this Agreement. To the extent that UCITA is applicable, the parties hereby opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.

C. Export Control.. Licensee acknowledge that the Licensed Software, Documentation and all related technical information or materials is subject to export controls under the laws and regulations of the United States and any other applicable governments. Licensee agrees to comply with these laws and regulations governing export, re-export, import, transfer, distribution, and use of the Licensed Software, Documentation and all related technical information or materials. In particular, but without limitation, the Licensed Software, Documentation and all related technical information or materials may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to any person or entity listed on a denial order published by the U.S. government or any other applicable governments. By using the Licensed Software, Documentation and all related technical information or materials, Licensee represents and warrants that Licensee is not located in any such country or on any such list. Licensee also agrees that Licensee will not use the Licensed Software, Documentation and all related technical information or materials for any purposes prohibited by the U.S. government or other applicable governments’ laws, including, without limitation, the development, design, manufacture or production of nuclear, missile, chemical or biological weapons. Licensee confirms that the Licensed Software, Documentation and all related technical information or materials will not be re-exported or sold to a third party who is known or suspected to be involved in activities including, without limitation, the development, design, manufacture, or production of nuclear, missile, chemical or biological weapons. Licensee agrees that Software, Documentation and all related technical information or materials subject to control under defense laws and regulations (e.g., the International Traffic in Arms Regulations [ITAR]) must not be transferred to non-U.S. persons, whether located in the U.S. or abroad, without a government license. Licensee will indemnify Licensor against any loss related to Licensee’s failure to conform to these requirements.
D. Force Majeure. Except for Licensee’s payment obligations hereunder, neither Party will be liable to the other Party for delay in performing its obligations, or failure to perform any obligation, under this Agreement, if the delay or failure results from circumstances beyond the control of that Party including, but not limited to, any acts of God, governmental act, fire, explosion, epidemic, pandemic, accident, war, armed conflict, terrorist act or civil commotion. If there is a delay, the time for performance will be extended by the amount of time lost by reason of the delay; provided, however, should an event of force majeure described in this Section delay either Party’s performance in any material respect for a period of more than ninety (90) days, then the other Party will have the option, upon giving written notice, to terminate this Agreement or the relevant portion of this Agreement affected by the delay.

E. Entire Agreement. The applicable Customer Order and this Agreement including the applicable ALT constitute the complete and exclusive statement of the agreement between the parties relating to the license for the Licensed Products and supersede all prior proposals, communications, purchase orders, and agreements (including, without limitation, Other Agreements), without need for a mutually executed amendment to any such Other Agreement. Any conflicting terms and conditions shall be resolved according to the following order of precedence: the applicable Customer Order, the applicable ALT, and then this Agreement in all other respects.

F. Amendment. No representation, supplement, modification, or amendment of this Agreement will be binding on either party unless executed in writing by duly authorized representatives of both parties (excluding any distributor or reseller of the Licensed Software) to this Agreement.

G. Waiver. No waiver of any right under this Agreement will be effective unless in writing and signed by authorized representatives of both parties (excluding any distributor or reseller of Licensor). No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.

H. Severability. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified, or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.

I. No Reliance. Each party acknowledges that in entering into this Agreement it has not relied on any representations, agreements, warranties, or other assurances (other than those repeated in this Agreement) and waives all rights and remedies which but for this Section 15 would be available to it.