RFP Success Express LLC
RFP SUCCESS TERMS AND CONDITIONS
These RFP Success Terms and Conditions (the “SaaS T&Cs”) are hereby incorporated into the Purchase Order entered into by and between RFP Success® Express LLC, an Arizona limited liability company with offices at 222 S. Mill Avenue, Tempe, AZ 85284 (“RFP Success”) and the customer specified in the Purchase Order (“Customer”). These SaaS T&Cs set forth the terms and conditions pursuant to which RFP Success will make the Platform available to Customer on a Software-as-a-Service (“SaaS”) basis. RFP Success and Customer are referred to herein individual as a “Party” and collectively as the “Parties.
1. Definitions.
Capitalized terms have the meanings set forth in this Section, or in the section where they are first used.
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify a User’s identity and authorization to access and use the Subscription Services.
“Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a Party. For purposes of this definition, the term “control” means direct or indirect ownership or control, through any applicable means, of more than 50% of the voting interests of the subject entity.
“Customer Data” means, other than Output, all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or Users through the Subscription Services.
“Customer Systems” means the information technology infrastructure used by Customer and its Users to access and use the Subscription Services, including all computers, software, hardware, and networks, whether operated directly by Customer or through the use of third-party services.
“Data Privacy Laws” means all worldwide, international, foreign, federal, state, municipal, and provincial data protection and privacy laws and regulations applicable to the Processing of Personal Data under the Agreement, including, where applicable, (a) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020; (b) the Colorado Privacy Act; (c) the Virginia Consumer Data Protection Act; (d) the Connecticut Act Concerning Personal Data Privacy and Online Monitoring; (e) the Utah Consumer Privacy Act; (f) any other U.S. State privacy laws that are in effect or take effect during the Term; (g) the General Data Protection Regulation (Regulation (EU) 2016/679); and (h) in each of the foregoing, all implementing regulations thereto and as each is updated, amended or replaced from time to time.
“Documentation” means RFP Success’ end user documentation relating to the Subscription Services as provided or made available by RFP Success to Customer.
“Intellectual Property Rights” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) patents; (b) trademarks; (c) copyrights; (d) moral rights; (e) internet domain names and social media account or user names (including “handles”), whether or not trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not copyrights; (f) software; (g) rights of publicity; (h) rights of privacy; (i) 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 (j) all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Output” means data and information that results from the Subscription Services (using artificial intelligence and other algorithms) processing Customer Data and other data provided by RFP Success for the purpose of enhancing, revising, augmenting, or updating Customer Data as part of the normal operation of the Subscription Services.
“Personal Data” means any information relating to an identified or identifiable natural person, including, without limitation, location data, or as such term is otherwise defined in applicable Data Privacy Laws including, “personal information”.
“Platform” means RFP Success’ SaaS platform that provides services to companies.
“Process”, “Processing,” or “Processed” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Purchase Order” means RFP Success’ standard purchase order entered into by the Parties which expressly incorporates these SaaS T&Cs, and specifies the applicable Fees, Subscription Term, and other terms applicable to the Subscription Services purchased by Customer.
“RFP Success Materials” means the Platform, Subscription Services, Documentation, RFP Success Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, plans, or reports, that are provided or used by RFP Success in connection with the Services or otherwise comprise or relate to the Services or RFP Success’ Systems. For the avoidance of doubt, RFP Success Materials include Output and Service Data, but does not include Customer Data.
“RFP Success Systems” means the information technology infrastructure used by or on behalf of RFP Success in providing the Subscription Services, including all computers, software, hardware, and networks, whether operated directly by RFP Success or on its behalf through third-party service providers.
“SaaS Agreement” means, collectively, the Purchase Order, these SaaS T&Cs, Documentation, and any policies and documents incorporated in any of the foregoing by reference.
“Services” means the Subscription Services. Services excludes any Third-Party Services.
“Subscription Services” means RFP Success’ provision of the Platform to Customer on a subscription basis.
“Subscription Term” means the period of time specified in the Purchase Order during which the Subscription Services are made available to Customer and its Users.
“Third-Party Services” means any third-party products and communication services that interface with the Subscription Services.
“User” means an individual who is authorized by Customer to use or access Subscription the Services.
2. Services.
Subscription Services. During the Subscription Term and subject to Customer’s payment of the Fees, RFP Success will make the Subscription Services available to Customer and Users on a subscription basis pursuant to the SaaS Agreement. Upon Subscriber’s payment of any initial or upfront Fees as specified in the Purchase Order, RFP Success will provide Subscriber the necessary Access Credentials and/or network links or connections to allow Customer to access the Subscription Services. Access to the Subscription Services may be provided to Customer based on the number of Users, or some other metric, as specified in the Purchase Order.
Customer Affiliates. Customer may also permit its Affiliates and their employees and contractors working for the benefit of Customer or such Affiliates to serve as Users, provided Customer remains responsible for compliance by such individuals with the SaaS Agreement. Alternatively, Customer Affiliates may purchase Subscriptions Services by executing a Purchase Order hereunder that references the terms of the SaaS Agreement, and in each such case, all references in the SaaS Agreement to Customer will be deemed to refer to such Customer Affiliate for purposes of such Purchase Order and such Affiliates will be responsible for their compliance with the terms of the SaaS Agreement.
Restrictions. Customer and Users will not at any time, directly or indirectly: (a) access or use the RFP Success Materials, except as expressly permitted by the SaaS Agreement; (b) copy, reproduce, distribute, or publicly display or perform the RFP Success Materials; (c) modify, adapt, alter, translate or create derivate works based on any of the RFP Success Materials; (d) sell, license, sublicense, lease, rent, loan, lend, distribute, assign, transfer or otherwise make available or allow the use of the Subscription Services for the benefit of any third party, including on or in connection with any time-sharing, service bureau, or other technology or service; (e) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Subscription Services; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to the source code (or the underlying ideas, algorithms, structure or organization) from the Subscription Services or any component thereof; (g) remove or obscure any proprietary notices or labels from the RFP Success Materials; (h) access or use the Subscription Services 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 Laws; or (i) access or use the RFP Success Materials for purposes of competitive analysis, the development, provision, or use of a competing service or product or any other purpose that is to RFP Success’ detriment or commercial disadvantage.
Changes. RFP Success reserves the right, in its sole discretion, to update and make any changes to the RFP Success Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Subscription Services to RFP Success’ customers; (ii) the competitive strength of or market for RFP Success’ products and services; or (iii) the cost, efficiency or performance of the Subscription Services; or (b) to comply with applicable Law, provided, however, that any such changes will not materially degrade the functionality of the Subscription Services during the Subscription Term.
3. Responsibilities.
Customer Responsibilities. Customer is responsible and liable for: (a) all access to and use of the Subscription Services and RFP Success Materials directly or indirectly by or through the Customer Systems and its or its Users’ Access Credentials; (b) the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (c) using commercially reasonable efforts to prevent unauthorized access to, or use of, the RFP Success Materials, and Access Credentials, and notifying RFP Success promptly of any such unauthorized access or use; (d) complying with all applicable Laws, including Data Privacy Laws, in using the Customer Data, Subscription Services, and Output.
Customer Systems. Customer’s right to use Customer Systems is governed by the terms and conditions established by each Customer Systems’ provider with Customer directly.
Remedies. RFP Success may temporarily suspend Customer’s (including Users’) access to the Subscription Services: (a) if RFP Success reasonably determines that there is, or there is reasonably likely to be, a threat on the RFP Success Materials caused by Customer; (b) if RFP Success reasonably determines that Customer’s use of the RFP Success Materials disrupts or poses a security risk to the RFP Success Materials or to any other customer or vendor of RFP Success; (c) Customer, or any User, is using the RFP Success Materials for fraudulent or illegal activities; or (d) in accordance with Section 5.4 (any such suspension will be considered a “Service Suspension”). If Customer (including Users) is using the Subscription Services in a manner that, in RFP Success’ reasonable judgment, causes or is likely to cause significant harm to RFP Success or the Subscription Services or otherwise threatens the security, integrity or availability thereof, RFP Success may suspend Customer’s access to the Subscription Service. RFP Success will use reasonable efforts under the circumstances of such suspension to (i) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension; (ii) limit the suspension to only Users involved in the activities in question; and (iii) remove the suspension as quickly as practicable after the circumstances leading to the suspension have been resolved.
4. Information Security. RFP Success will (a) comply with all Laws applicable to its business and provision of the Services; (b) RFP Success will maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data as specified in RFP’s Security Policy, a copy of which is attached hereto as Exhibit A (“RFP Security Policy”). RFP may amend the RFP Security Policy from time to time upon written notice to Customer (which notice may be provided via email or through the Platform), provided, however, that any changes will not materially degrade the security of Customer Data.
5. Fees.
Fees. Customer will pay RFP Success the fees specified in the Purchase Order (“Fees”). All Fees are non-cancelable and non-refundable, except as may be expressly set forth in these SaaS T&Cs. Customer will make all payments hereunder in U.S. dollars. Unless otherwise expressly specified in the Purchase Order, RFP Success may increase the Subscription Services Fees by providing at least thirty (30) days’ written notice to Customer.
Invoicing and Payment. Except as otherwise specified in the Purchase Order, all Fees and any other amounts due under the SaaS Agreement will be invoiced and deducted in advance for the duration of the Subscription Term unless Customer terminates the SaaS Agreement in accordance with Section 11.
Fees for Third-Party Services. Customer is responsible for all fees and charges applicable to Third-Party Services.
Failure to Pay. If Customer fails to pay any undisputed invoices in accordance with this Section, RFP Success may, provided that RFP Success gives Customer written notice of such non-payment and ten (10) days from the date of such notice to remit the overdue, undisputed amounts in full: (a) suspend Customer’s access to the Subscription Services pending payment of such overdue invoices; and (b) charge a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes that RFP Success has billed Customer incorrectly, Customer must contact RFP Success no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Once RFP Success receives notice of a disputed invoice, RFP Success will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If RFP Success reasonably determines that the amounts charged on a disputed invoice are, in fact, due, Customer will pay such amounts within ten (10) days after RFP Success notifies Customer in writing of such decision.
Taxes. The Fees do not include, and Customer is solely responsible for, all sales, use, excise, value added, customs fees, or other taxes or governmental assessments of any kind, relating to Customer’s purchases hereunder (“Taxes”), except for any taxes based on RFP Success’ income. If RFP Success has the legal obligation to pay or collect Taxes for which Customer is responsible, RFP Success will invoice Customer, as a separately itemized item, and Customer will pay such in accordance with the payment terms set forth in Section 5.2, unless Customer provides RFP Success with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Proprietary Rights.
Customer Data. As between RFP Success and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to RFP Success a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as needed for RFP Success to: (a) provide the Services; (b) improve and modify the Services (including for training or retraining artificial intelligence models); (c) to aggregate information regarding the Customer Data and Customer’s use of the Subscription Services; and (d) conduct research for developing new services.
RFP Success IP. RFP Success owns all right, title, and interest, including all Intellectual Property Rights, in and to the RFP Success Materials and in and to all of RFP Success’ proprietary technology (including software, hardware, products, processes, algorithms, methodologies, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by RFP Success in providing the Services to Customer (collectively, “RFP Success IP”). Subject to Customer’s and its Users’ limited right to use the Subscription Services as specified herein, no rights are granted to Customer, Users, or any third party with respect to any RFP Success IP, and the SaaS Agreement shall not be construed as granting any such rights, whether by implication, waiver, estoppel, or otherwise.
Output. Customer and RFP Success agree and acknowledge that RFP Success’ provision of the Subscription Services may include the creation of Output. To the extent the Subscription Services provided to Customer include the creation of Output, Customer hereby grants to RFP Success a non-exclusive, irrevocable, royalty-free, worldwide license during the Term to reproduce, distribute, modify, and otherwise use and display Customer Data as necessary or useful to create such Output and RFP Success hereby grants to Customer a non-exclusive, perpetual, irrevocable, fully paid-up, worldwide license to reproduce, distribute, modify, and otherwise use the Output as provided by the Subscription Services. As between the Parties, Customer is the exclusive owner of the Output, while the templates, methodology and metrics used to create the Output, and related Intellectual Property Rights remain the sole and exclusive property of RFP Success.
Use of Output. Customer acknowledges and agrees that it is solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for its use case, including by utilizing human review as appropriate.
Service and Model Data. As Customer (including its Users) interacts with the Subscription Services, RFP Success and the Subscription Services (a) collect data pertaining to the performance of the Subscription Services as well as query logs, metadata and other data and information related to the operation and support of the Subscription Services and Customer and Users’ use thereof (“Service Data”), and (b) process Customer Data by artificial intelligence and other algorithms to create artificial intelligence models (“Model Data”). Notwithstanding anything else to the contrary herein, provided that the Service Data is aggregated and anonymized, the Parties agree that RFP Success is free to use the Service Data in any manner and Model Data that does not identify Customer or Customer Data. Customer acknowledges that, as between Customer and RFP Success, RFP Success owns all right, title, and interest, including all Intellectual Property Rights, in and to the Model Data.
Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to RFP Success specifically with respect to the RFP Success Materials or Services (“Feedback”). RFP Success agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer grants RFP Success a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
7. Confidentiality.
Confidential Information. In connection with the Services provided hereunder, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party designated as confidential or that reasonably should be understood to be confidential given the nature of the information disclosed or the circumstances of disclosure, including proprietary technology, trade secrets, business and marketing plans, business processes, and technical information. Without limiting the foregoing, the RFP Success Materials and RFP Success’ security information are and will remain the Confidential Information of RFP Success.
Exclusions to Confidential Information. Confidential Information does not include information that: (a) is or becomes generally available to the public, (b) was known to the Receiving Party prior its disclosure by the Disclosing Party, (c) is received from a third party without a breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
Obligations of Confidentiality. The Receiving Party will (a) not use the Disclosing Party’s Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with the SaaS Agreement; (b) except as may be permitted by and subject to its compliance with Section 7.4 (Compelled Disclosure), not disclose or permit access to Confidential Information other than to its personnel, auditors, accountants, attorneys or advisors who are subject to confidentiality obligations just as protective of the Confidential Information as the terms of this Section 7; or (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information but in no event less than a reasonable standard of care.
Compelled Disclosure. This Agreement shall not restrict the Receiving Party’s disclosure of Confidential Information of the Disclosing Party pursuant to any order, subpoena, regulation, or process of law; provided, that the Receiving Party shall give prior, written notice to the Disclosing Party (to the extent it is legally permitted) so that the Disclosing Party may seek an appropriate protective order or other remedy, and the Receiving Party shall cooperate with the Disclosing Party to obtain such protective order. To the fullest extent permitted by law, the Receiving Party will continue to protect as confidential and proprietary all information disclosed pursuant to this Section 7.4.
Survival. The obligations of confidentiality set forth in this Section 7 survive the expiration or any termination of the SaaS Agreement as follows: (a) with respect to Confidential Information that constitutes a trade secret, for so long as such information is deemed a trade secret under applicable law; and (b) with respect to all other Confidential Information, the shorter period of three (3) years after the expiration or any termination of the SaaS Agreement or until such information no longer qualifies as confidential hereunder.
8. Warranty; Disclaimer.
RFP Success Warranties. RFP Success represents, warrants, and covenants to Customer that, subject to Customer’s and its Users’ compliance with the terms of the SaaS Agreement: (a) the Subscription Services will perform materially in accordance with the applicable Documentation under normal use and circumstances; and (b) it will implement and use commercially reasonable advanced threat detection designed to monitor against Malicious Code being introduced into or affect the Subscription Services or RFP Success Systems. For purposes of the Agreement, “Malicious Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data in a manner not intended by the computer, system or network, or in some other fashion disrupt the normal operation of a computer, system or network.
Customer Warranties. Customer represents, warrants, and covenants to RFP Success that: (a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by RFP Success and processed in accordance with the SaaS Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law, including any Data Privacy Laws; (b) Customer’s provision of Customer Data to RFP Success and the Subscription Services and RFP Success’ processing thereof will not violate Customer’s own applicable privacy policies and/or privacy notices; (c) Customer’s and its User’s use of the Subscription Services and Output will comply with applicable Laws; and (d) Customer has all necessary rights and consents relating to the use of the Subscription Services with Third-Party Services, including all necessary rights and consents required to permit the Subscription Services to integrate with, and transfer information from or to, such Third-Party Services.
Remedies for Breach of Warranty. If RFP Success breaches the warranty in Section 8.1 (a) (provided that the breach is not caused by the combination of the Subscription Services with any services, hardware, connection, interface, data or business processes not provided by RFP Success) Customer will promptly (but in no event later than 30 days) provide RFP Success with notice of such breach and RFP Success will use commercially reasonable efforts to correct such breach so that the Subscription Services conforms to the Documentation as required above, and if RFP Success is unable to provide such Subscription Services as warranted within a commercially reasonable time or another time period agreed upon by the Parties in writing, Customer will be entitled to terminate the affected Subscription Services and receive a pro-rated refund of any prepaid Fees applicable to the remaining portion of the Subscription Term. The foregoing remedies are RFP Success’ sole liability and Customer’s sole remedy in the event of RFP Success’ breach of Section 8.1.
Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES STATED IN SECTION 8.1, THE RFP SUCCESS MATERIALS ARE PROVIDED “AS IS” AND RFP SUCCESS HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RFP SUCCESS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8.1, RFP SUCCESS MAKES NO WARRANTY OF ANY KIND THAT THE RFP SUCCESS MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (INCLUDING THIRD-PARTY SERVICES), OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. THE WARRANTIES IN SECTION 8.1 DO NOT APPLY TO ANY THIRD-PARTY SERVICES, AND RFP SUCCESS STRICTLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SERVICES.
9. Indemnification.
Indemnification by RFP Success. RFP Success will indemnify and defend Customer against any demand, claim, loss, liability, or damage (“Losses”) arising out of or resulting from any claim, suit, action, or proceeding (each an “Action”) by a third-party (other than an Affiliate of the Customer’s indemnitees) to the extent that such Losses arise out of or result from a claim that any of the Subscription Services or any RFP Success Materials actually does or threatens to infringe, misappropriate or otherwise violate any United States’ Intellectual Property Right, provided however, that RFP Success will have no liability or obligation for any Action or Losses to the extent that such Action or Losses arise out of or results from any: (a) alteration or modification of the Subscription Services or the RFP Success Materials without RFP Success’ express written authorization; (b) use of the Subscription Services or the RFP Success Materials by Customer or a User pursuant to the SaaS Agreement in combination with any apparatus, hardware, software or service not provided, authorized or approved by or on behalf of RFP Success in writing; (c) access to or use of the Subscription Services or the RFP Success Materials that is expressly prohibited by the SaaS Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in the SaaS Agreement; (d) any Customer Data or any instruction or information provided by Customer to RFP Success and used in accordance with the SaaS Agreement; or (e) violation of any applicable law by Customer or any of its Users.
Options. Subject to the exclusions set forth in subsection (a) through (e) of Section 9.1, if RFP Success reasonably believes that any of the Subscription Services or the RFP Success Materials infringe or otherwise violate the rights of any third-party, RFP Success will either, at RFP Success’ sole cost and expense: (a) procure for Customer the right to continue to access and use the Subscription Services and RFP Success Materials to the full extent contemplated by the SaaS Agreement and the Documentation; or (b) modify or replace the Subscription Services or RFP Success Materials that infringe or are alleged to infringe to make the Subscription Services or RFP Success Materials non-infringing while providing substantially equivalent features and functionality. If RFP Success reasonably determines that the foregoing remedies would be commercially impractical or impossible then RFP Success will terminate the Purchase Order and promptly provide Customer with a pro-rata refund any prepaid Fees for the unused Subscription Services remaining in the applicable Subscription Term.
Indemnification by Customer. Customer will indemnify and defend RFP Success and RFP Success’ Affiliates from and against any and all Losses incurred by RFP Success or RFP Success’ Affiliates resulting from any Action by a third party (other than an Affiliate of RFP Success) that arise out of or result from, or are alleged to arise out of or result from a breach of any of the representations, warranties, covenants set forth in Section 8.2.
Procedure. Each Party’s obligations under Sections 9.1 and 9.3 are conditioned on the indemnified Party (a) providing the indemnifying Party with prompt written notice of the Action (provided that the indemnified Party’s failure to provide such written notice will only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying Party’s ability to defend or settle such Action), (b) granting the indemnifying Party the sole control of the defense and settlement of the Action, and (c) providing reasonable information and assistance to the indemnifying Party in the defense or settlement of the Action at the indemnifying Party’s expense. Notwithstanding anything else to the contrary in the SaaS Agreement, any obligation of the indemnifying Party to defend, indemnify and hold the indemnified Party harmless hereunder is limited to the indemnifying Party’s payment for the cost of defense of the third-party claim incurred by the indemnifying Party and the payment of (i) any settlements agreed to by indemnifying Party in a writing signed by an officer of indemnifying Party, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction. The indemnifying Party will not agree to any settlement of any Action that requires the indemnified Party to make any admission of wrongdoing or to pay any amounts not covered by the indemnifying Party without the indemnified Party’s prior written consent. Any indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND RFP SUCCESS’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SUBSCRIPTION SERVICES OR RFP SUCCESS MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.
Limitations on Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, (B) DAMAGES BASED ON LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THE SAAS AGREEMENT, OR (C) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SAAS AGREEMENT THAT EXCEEDS THE TOTAL OF THE AMOUNTS PAID TO RFP SUCCESS PURSUANT TO THE PURCHASE ORDER FOR THE AFFECTED SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN EACH CASE, SUCH LIMITATIONS WILL APPLY REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
Exceptions. The exclusions and limitations in Section 10.1 will not apply to: (a) a Party’s indemnification obligations under Section 9; or (b) Customer’s payment of Fees due and owing pursuant to Section 5; or (c) Customer’s breach Section 2.4. Notwithstanding the foregoing, RFP Success’ aggregate liability arising out of or related to a material breach of Section 4 these SaaS T&Cs will not exceed two (2) times the total of the amounts paid to RFP Success pursuant to the Purchase Order in the twelve (12) month period preceding the event giving rise to the claim.
11. Term and Termination.
Term. The SaaS Agreement will commence upon the Parties’ execution of the Purchase Order and continue in effect for as long as the Purchase Order is in effect (the “Term”).
Renewal of Subscription Terms. Except as otherwise specified in the Purchase Order, the Subscription Term will automatically renew for additional terms of equal length to the immediately preceding term (each a “Renewal Subscription Term”), unless either Party gives the other written notice at least 30 days before the end of the then-current Subscription Term. Except as expressly provided in the Purchase Order, discounts, promotions, and/or special pricing will not apply to any Renewal Subscription Term and RFP Success’ applicable list prices will apply to the Subscriptions Services during any Renewal Subscription Term.
Termination for Cause. In addition to any right of termination set forth elsewhere in the SaaS Agreement, either Party may terminate the Purchase Order, by written notice to the other Party effective as of the date specified in such notice, if the other Party materially breaches the SaaS Agreement and such breach either: (a) cannot be cured; or (b) being capable of cure, remains uncured thirty (30) days after the breaching Party receives written notice thereof. In addition to any other right of termination set forth herein, RFP Success may terminate the Purchase Order by written notice to Customer if Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after Customer’s receipt of written notice of nonpayment. If Customer terminates the Purchase Order pursuant to this Section 11.3, Customer will be entitled to a pro-rata refund of the applicable Fees set forth in the Purchase Order for the portion of the remainder of the Subscription Term that have been pre-paid and is subject to the material breach. Termination of the Purchase Order by RFP Success pursuant to this Section 11.3 does not relieve Customer of the obligation to pay any Fees due and owing to RFP Success.
Effect of Termination. Except as otherwise provided in the SaaS Agreement, upon and after the termination or expiration of the SaaS Agreement for any reason: (a) Customer will cease all use and access to the Subscription Services and RFP Success Materials; and (b) Customer will pay to RFP Success all undisputed charges and amounts due and payable to RFP Success.
Surviving Provisions. The provisions of these SaaS T&Cs that, by their nature and content, should survive the termination or expiration of the SaaS Agreement in order to achieve the fundamental purposes of the SaaS Agreement will so survive and continue to bind the Parties. Without limiting the generality of the foregoing, the Parties specifically acknowledge that the following provisions will survive and continue to bind the Parties: Sections 1, 5, 6, 7, 8, 9, 10, 11.5, 11.6, and 12.
12. General Terms.
Force Majeure. Neither Party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a Party that make it impossible or commercially impracticable for such Party to perform its obligations hereunder (other than payment obligations), which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of the Party failing to perform), shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties. Nothing herein will be construed to create an agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties. The Parties will be independent contractors pursuant to the SaaS Agreement. Neither Party hereto will have any express or implied right, power, or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
Notices. Ordinary day-to-day operational communications may be conducted by email. All other notices, consents, claims, demands, waivers, and other communications required hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Purchase Order (or to such other address that may be designated by the receiving Party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 12.3.
Amendment and Modification; Waiver. No amendment to, or modification of, the SaaS 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 the SaaS Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the SaaS Agreement will remain in full force and effect.
Assignment. Customer shall not assign, delegate, or otherwise transfer the SaaS Agreement or any rights or obligations herein under the SaaS Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of RFP Success. Any attempted assignment in contravention of this provision will be null and void and of no force or effect. RFP Success may assign the SaaS Agreement without Customer’s consent, to an Affiliate or in connection with a merger, consolidation, reorganization, acquisition, or other transfer of all or substantially all of its assets with respect to the Subscription Services or voting securities to a successor. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.
Governing Law; Dispute Resolution. This Agreement shall be governed by the law of the State of Arizona, without regard to its conflict of law provisions. If any dispute arises under the SaaS Agreement, the Parties agree that RFP Success shall have the option to submit the dispute to binding arbitration in Maricopa County, Arizona, conducted under the rules of the American Arbitration Association before a single arbitrator ("Arbitration Option") or in the US District Court for the District of Arizona, or if such court does not have subject matter jurisdiction, the courts of the State of Arizona sitting in Maricopa County, and any appellate court from any thereof. The Parties further agree that if any dispute arises under the SaaS Agreement that Customer must submit the dispute through the Arbitration Option only. All arbitration proceedings shall be confidential. Neither Party shall disclose any information about the evidence produced by the other Party in the arbitration proceedings, except in the course of judicial, regulatory, or arbitration proceeding, or as may be demanded by government authority. Before making any disclosure permitted by the preceding sentence, a Party shall give the other Party reasonable advance written notice of the intended disclosure and an opportunity to prevent disclosure. Only evidence that is directly relevant to the issues may be presented in the arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, RFP Success may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Arizona or any other state where personal jurisdiction exists over Customer, at RFP Success’ sole discretion.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the SaaS Agreement.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.4, 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 from any court, 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.
Entire Agreement. These SaaS T&Cs, together with the Purchase Order, Documentation, and any policies and documents incorporated in any of the foregoing by reference, contain the entire agreement of the Parties and supersedes any prior or present understanding or communications, both written and oral, with respect to such subject matter. In the event of a conflict between these SaaS T&Cs, the terms contained in the Purchase Order shall control.
RFP Security Policy
Measures utilized by or on behalf of RFP that are designed to protect Customer Data from unauthorized access or use include the following:
Secure Communication (TLS 1.2/1.3): All Customer Data is encrypted using TLS, and HTTPS is enforced to secure communications.
PostgreSQL Database Security: Customer Data is encrypted at rest and in transit, with strict access controls to ensure only authorized Users can access such data.
Stripe Integration: Payments are processed securely via Stripe, which is PCI-DSS Level 1 compliant. RFP does not store any sensitive payment data.
Authentication & Authorization: RFP uses JWT tokens for stateful authorization, ensuring secure user authentication and role-based access control.
Data Encryption: Sensitive data is encrypted using AES-256 for strong protection.
ASP.NET Core 8 Security: Built-in .NET 8 security features, including CSRF protection and secure data handling.
Access Control & Monitoring: IP restrictions and monitoring systems are in place to detect and respond to suspicious activity.
