Rapidops and Client agree that these terms and conditions (the “Terms”) shall govern the relationship between the parties as to any consulting services provided or to be provided to the Client as set forth in a document incorporating these terms (a “Proposal” or “Statement of Work (SOW)"). As to any particular Proposal, the additional definitions, and Proposal-specific terms and conditions, these Terms together constitute the agreement of the parties and are referred to collectively herein as the “Agreement.” In the event of any conflict between the Proposal and these Terms, the terms and conditions of the Proposal shall prevail. Each of Rapidops and Client may be referred to as a “Party” or collectively as “the Parties”.
Rapidops and Client agree as follows:
“Rapidops” brand, platform, and associated services are owned and offered by the following legal entity. Therefore, for the purpose of this Agreement, “Rapidops” has the meaning set forth in the table below:
| Legal Entity Name | Rapidops Inc. |
| Principle Office Address |
525 N Tryon St. Suite 1600 Charlotte NC 28202 |
| Entity Type | C-Corporation |
1. Services
a) Rapidops will provide Client with the services (“Services”) and deliverables (“Deliverables”) as specified in the Proposal or Statement of Work document (any and all of which are attached hereinafter referred to as “SOW”).
b) It is understood and agreed that Rapidops Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client.
c) Any estimate given by Rpaidops of any fees or other charges or any timetable, whether for planning or any other purpose, is given in good faith only. No estimate shall become binding on either party unless expressly agreed jointly by the parties in writing in the form of an agreed upon SOW.
d) The parties expressly acknowledge and agree that any specific start and stop dates and timelines contained in an SOW are not firm performance dates and may be revised during the term of the engagement contemplated therein. Nonetheless, Rapidops agrees to use reasonable efforts to meet such dates and timelines. Notwithstanding any other provision of this Agreement, if Rapidops utilizes reasonable effoFrts but is unable to meet such dates or timelines, it shall not be considered to have defaulted on its obligations hereunder. Rapidops agrees to use commercially reasonable efforts to notify Client promptly if it expects to encounter, or encounters, material delays prior to the originally estimated date or milestone date and will ensure to communicate the details with respect to the reason(s) for the delay.
e) The Client agrees to pay for the Services in accordance with the SOW on a "Time and Materials" basis or on a "Fixed Cost" basis as mutually agreed in writing, as specified in the SOW.
f) Rapidops personnel (employees, affiliates or contractors) may perform Services at Client’s site or away from Client’s site.
g) Upon Client’s request, the parties shall, in good faith, negotiate additional SOWs, each of which, upon execution, shall be deemed a part of this Agreement. Such additional SOWs shall incorporate these Terms just like the original SOW agreed upon by the parties.
2. Payment of Invoices
a) Invoices: Unless specified otherwise in an SOW, invoices for Rapidops fees, expenses and any taxes will be issued Due Upon Receipt, and all payments will be in U.S. dollars. All invoices will be paid by the Client as per the Payment Terms defined in the SOW, which are effective from the date of receipt of an invoice ("Due Date"). If the Client disputes any portion of an invoice, it shall notify Rapidops within 7 days of receipt and pay the undisputed portion of that invoice by the Due Date.
b) Payments: Full payment of all amounts invoiced by Rapidops with respect to its Services and Deliverables shall be due as per the Payment Terms defined in the SOW. Invoices for which full payment is not received as per the Payment Terms shall accrue a late charge of the lesser of (i) 1½% per month or (ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law. Without limiting its rights or remedies, Rapidops shall have the right to suspend or terminate its Services and/or withhold the Deliverables if full and final payment of all amounts under an applicable amount is not received as per the Payment Terms.
c) Taxes: Customer further agrees to pay all foreign, federal, state, and local taxes, if applicable, to Customer’s access to, use, or receipt of the Services or Deliverables (excepting taxes on Rapidops’s net income).
d) Pay by Credit Card: If Client pays any fees by credit card, Client expressly authorizes Rapidops or its agents to charge Client all reasonable credit card fees incurred by Rapidops (usually ~3% of payment amount). If Client uses a credit card and Rapidops does not receive payment from the card issuer, Client will immediately pay all amounts due upon demand by Rapidops.
e) Out of Pocket Expenses: All fees and other charges are exclusive of reasonable out of pocket expenses unless the SOW states otherwise. Expenses will be invoiced by Rapidops, and the Client agrees to pay expenses incurred, including, without limitation, travel expenses,\ and any goods and services purchased on the Client’s behalf, which are pre-approved by the Client and will be billed at cost. Any special expense arrangements will be agreed upon and set out in a SOW.
3. Termination
a) This Agreement shall commence on the “Effective Date” as set forth in the SOW and continue in full force and effect until terminated in accordance with the terms hereof. Either party may terminate this Agreement at any time, with or without cause, with thirty (30) days prior written notice to the other party, provided that in the event of a termination for cause, the breaching party shall have the right to cure the breach within the notice period.
b) The obligations of each party, which have been incurred prior to the effective date of termination (including, without limitation, the obligations of Client under Section 2), shall continue in full force and effect notwithstanding the expiration or termination of this Agreement and whether or not an invoice has been rendered with respect thereto. Upon termination (whether by Client or Rapidops), Client will pay Rapidops for all billable hours and expenses that Rapidops has incurred or earned throughout the project, which includes all the Services, meetings, and project management time from the Effective Date of this Agreement to the effective date of termination. Rapidops will then deliver to the Client all Deliverables and assets completed between the Effective Date and the termination.
4. License and Ownership
a) Rapidops Technology: Rapidops has created, acquired or otherwise, has rights in, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in various concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, technologies, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively the “Rapidops Technology”).
b) Ownership of Deliverables: For purposes of this Agreement, Deliverables shall include the work product created by Rapidops for delivery to Client in connection with Services provided hereunder, but shall not include i) concepts, ideas, designs, proposals, any other work and materials which have been presented to the Client, but not included in the final work product, or ii) any third-party software or related documentation licensed directly to Client from a third party, or any modifications or enhancements thereto or derivatives thereof. Rapidops hereby (i) assigns to Client ownership of the Deliverables (except for any Rapidops Technology contained therein) and (ii) grants to Client a non-exclusive, royalty-free, worldwide, perpetual, nontransferable license to use, for Client’s internal business purposes, any Rapidops Technology contained in the Deliverables. The rights granted to Client in this Section are contingent upon Client’s full and final payment to Rapidops hereunder.
c) Ownership of Rapidops Property: To the extent that Rapidops utilizes any of its intellectual or other property in connection with the performance of Services hereunder, Rapidops shall retain all rights, title and interest in and to such property, and, except for the license expressly granted in this Section, Client shall acquire no right, title or interest in or to such property.
5. Confidentiality
a) To the extent that, in connection with this Agreement, each party comes into possession of any proprietary or confidential information of the other party (“Confidential Information”), each party agrees to use the Confidential Information of the other party solely for the purposes of this Agreement, and will not disclose such Confidential Information to any third party without the other party’s consent. The terms of this Agreement shall also be considered Confidential Information. Each party shall maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care. Provided that the receiving party shall have met the foregoing standard of care, an inadvertent or accidental disclosure by the receiving party of Confidential Information of the disclosing party shall not constitute a breach hereof.
b) Confidential Information shall not include information which (i) otherwise becomes publicly available (other than by breach of this Agreement by the receiving party); (ii) was disclosed to the receiving party on a non-confidential basis from a source other than the disclosing party, which the receiving party believes is not prohibited from disclosing such information as a result of an obligation in favor of the disclosing party, (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party, or (iv) is disclosed with the written consent of the disclosing party. A receiving party also may disclose Confidential Information to the extent required by an order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or other administrative or legal process, or by applicable regulatory or professional standards, or in connection with any judicial or other proceeding, provided the receiving party gives prompt notice to the disclosing party so it may contest such disclosure.
6. Limitation on Warranties
This Agreement is a services agreement. Rapidops warrants that it will perform services hereunder in good faith and in a professional manner. Rapidops disclaims all other warranties, express, implied or statutory, including, without limitation, warranties of merchantability, security, performance, and fitness for a particular purpose. Client’s exclusive remedy for any breach of this warranty shall be for Rapidops, upon receipt of written notice, to use diligent efforts to cure such legitimate breach, or, failing any such cure in a reasonable period of time, the return of professional fees paid to Rapidops hereunder with respect to the services giving rise to such breach.
7. Limitation on Damages and Actions
a) Each party agrees that the other party, its affiliates, agents and subcontractors, and each of their partners, principals or other personnel (“other party”) shall not be liable for any actions, damages, claims, liabilities, costs, expenses, or losses (“losses”) in any way arising out of or relating to the Services performed pursuant to any SOW under this Agreement in an amount in excess of the total professional fees and expenses payable to Rapidops by Client under the applicable SOW, and in no event shall liability for all losses in the aggregate under this Agreement exceed the total professional fees and expenses payable to Rapidops under this Agreement, with the exception of any losses relating to breach of the confidentiality provisions for which the liability limitations of this paragraph shall not apply.
b) Each party agrees that in no event shall the other party be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs).
c) The provisions of this Section shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise.
d) No action, regardless of form, arising under or relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any invoice may be brought by a party not later than one year following the date of the last payment due to such party of any invoice hereunder.
e) Notwithstanding the above and recognizing that in the event of a breach of any of the provisions herein relating to Confidential Information or Non-Solicitation, damages at law would be inadequate, either party shall be entitled to equitable relief by way of restraining order or injunction, to restrain or prevent any such breach.
8. Cooperation
Client shall cooperate with Rapidops in the performance of its Services hereunder, including, without limitation, providing Rapidops with reasonable facilities and timely access to Client's data, information, and personnel. Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Rapidops. Client acknowledges and agrees that Rapidops performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Services. Rapidops shall be entitled to rely on the Client's decisions and approvals.
9. Non-Exclusivity
This Agreement shall not preclude or limit in any way the right of Rapidops to provide consulting, software development or other services of any kind or nature whatsoever to any individual or entity as Rapidops, in its sole discretion, deems appropriate.
10. Non-Solicitation
During the term of this Agreement and for a period of two (2) years thereafter, neither party shall directly or indirectly, without the prior written consent of the other, employ, solicit or retain the services of the personnel of the other party, including their employees, independent contractors or consultants who are involved in the receipt or provision of the Services.
11. Other Terms
a) Force Majeure: Except for the payment of monetary obligations set forth in Section 2, neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate of the other party (including, without limitation, entities or individuals under its control, or their respective officers, directors, employees or other personnel and agents), acts or omissions or the failure to cooperate by any third party (other than Rapidops affiliate or subcontractors), fire or other casualties, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
b) Independent Contractor: Each party to the Agreement is an independent contractor, and neither party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, co-owner or representative of the other.
c) Survival: All sections herein relating to payment, license and ownership, confidentiality, warranties, limitations of warranties, limitations on damages and actions, non-exclusivity, non-solicitation, waiver, and waiver of jury trial shall survive the termination of this Agreement.
d) Interpretation: For the purposes of this Agreement, “Rapidops” shall mean Rapidops Inc. and its subsidiaries, successors and assigns.
e) Notices: Client shall provide a valid email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party of such purpose and shall be deemed given upon receipt of machine confirmation of successful transmission by email. Notices to Rapidops shall be sent to legal@Rapidops.com. If Client fails to provide an email address for notices, Rapidops may provide notices hereunder by any means reasonably calculated to provide Client with actual notice thereof.
f) Assignment: Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder (including, without limitation, interests or claims relating to this Agreement) without the prior written consent of the other party. Rapidops may, upon notice to Client, subcontract or delegate its obligations and responsibilities hereunder to its related and affiliated entities, provided, however, that Rapidops shall not be relieved of its obligations hereunder. Notwithstanding the foregoing, either party may assign this Agreement, without the consent of the other party, to an entity that has acquired all or substantially all of the assigning party’s assets as a successor to the business.
g) Waiver: The failure of either party to insist upon strict performance of any of the provisions contained in this Agreement shall not constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party of any of the terms or conditions in this Agreement.
h) Entire Agreement: This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof and may not be amended except by a written agreement signed by the parties. Any active SOWs between Parties shall be governed by the terms hereof.
i) Governing Law & Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. The venue for any dispute or litigation will be the Business Court in Mecklenburg County, located in Charlotte, North Carolina.
j) Waiver of Jury Trial: Each of the parties hereby irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim, whether in contract, statute, tort, or otherwise relating to this Agreement.
k) Severability: If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this Agreement.